IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


/ 


y> 


W. 


:/. 


O 


Ux 


fA 


1.0   Iri 


I.I 


28 


IM 

22 


-    Ii2    IllilO 


.8 


1:25 

1.4 

16 

« 6"     — 

► 

'''i  ^^i'/     / 


PhotogTciphic 

Sciences 
Cor[X)rdti()n 


23  WIST  MAIN  STKIIT 

WEBSTIR  N  ¥    I4SS0 

I  716  1  877  4)03 


CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  canadien  de  microreproductiona  historiques 


1^ 


^1987 


Technical  and  Bibliographic  Notaa/Notss  tachniquas  at  bibliographiquas 


Tha  instituta  has  attampted  to  obtain  iha  bast 
original  copy  available  for  filming.  Features  of  this 
copv  which  may  be  bibliographically  unique, 
which  may  altar  any  of  the  images  in  tha 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  f'iming,  are  checked  below. 


L'tnstitut  a  microfilm^  le  meilleur  exemplaire 
qu'il  lui  a  ate  possible  de  se  procurer   Las  details 
de  cet  exemplaire  qui  sont  peut-^tre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dans  la  m^thoda  normale  de  filmage 
sont  indiquAs  ci-dessous. 


□    Coloured  covers/ 
Couverture  da  couleur 


n 


Covers  damaged/ 
Couverture  endommagAa 


Covers  restored  and/or  laminated/ 


□    Cov« 
Couverture  restaurAe  at/ou  pellicul^e 

□    Cover  title  m 
Le  titre  de  cc 


Cover  title  missing/ 

:ouverture  manque 


□    Coloured  maps/ 
Cartes  g4>ngraphiquas  on  coulsur 

□    Coloured  ink  lie   other  than  b;ua  or  black)/ 
Encra  de  couleur  (i.e.  autre  qua  blaua  ou  noire) 

□    Coloured  plates  and/or  illustrations/ 
Planches  at/ou  illustrctiona  en  couleur 

□    Bound  with  other  material/ 
Rail*  avac  d'autrea  documants 


n 


□ 


Tight  binding  may  causa  shadows  or  distortion 
along  interior  margin/ 

Lareliure  serree  peut  causer  de  I'ombra  ou  de  la 
distorsion  l«  long  da  la  marg«  intAriaura 

Blank  leaves  added  during  restoration  may 
appear  within  tha  text   Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  page*  blanches  ajoutAas 
lora  d  una  rastauration  apparaissant  dans  la  taxta. 
mais,  lorsqua  cela  Atait  possible,  ces  pages  n  ont 
pas  *t*  film*as. 


□    Coloured  pages/ 
Pagaa  da  couleur 

□    Pages  damaged/ 
Pages  endommag^es 


□ 


Pages  restored  and/or  laminated 
Pages  restaur^es  et/ou  palliculAes 

Pbges  discoloured,  stained  or  foxed/ 
Pages  dAcolor^es.  tachetAes  ou  piquees 

Pages  detached/ 
Psgas  d^tacheas 


r~yi    Showthrough/ 


D 
D 
D 

n 


Transparence 

Quality  of  print  varies/ 
Quality  inAgale  de  I'impression 

Includes  supplementary  material/ 
Comprend  du  material  suppl^mantaire 

Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  ate  .  have  been  refilmed  to 
ensure  the  best  oossible  image/ 
Lea  pages  toalemant  ou  partiallement 
obscurcies  par  un  feuillet  d'errata.  une  pelure. 
etc  .  cnt  iti  fllmAes  i  nouveau  da  facon  a 
obtanir  la  meilleura  image  possible 


0 


Additional  comments  / 
Commantaires  s:iopUmentairas 


Thii  copy  it  a  photoraproduction. 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ca  document  est  film*  au  taux  de  reduction  indiquA  ci-dessoua. 

10X  14X  18X  22X 


26X 


30X 


tax 


16X 


J\ 

7DX 


1 


24X 


28X 


32X 


The  copy  filmed  h«r«  has  b««n  raproduead  thanks 
to  tha  ganarosity  of: 

Memorial  Uiiivereity  of  St  .John's 


L'axampiaira  filmA  fut  raproduit  grica  i  !i 
gAnAroait*  da: 

Mcnwrial  Uiiivarsity  of  St.  John's 


Tha  imagaa  appaaririg  hara  ara  tha  baat  quality 
poaaibia  considanng  tha  condition  and  lagibility 
of  tha  original  copy  and  in  icaaping  with  tha 
filming  contract  spacificationa. 


Laa  imagaa  suivantaa  ont  AtA  raproduitaa  avac  la 
plua  grand  toin,  eompta  tonu  da  la  condition  at 
da  ia  nattatA  da  l'axampiaira  film*,  at  an 
eonformit*  avac  laa  conditiona  du  con<rat  da 
filmaga. 


Original  copiaa  in  printad  papar  ovara  ara  fllmad 
beginning  with  tha  front  covar  and  anding  on 
tha  laat  paga  with  a  printad  or  illuatratad  impraa- 
sion,  or  tha  back  covar  whan  appropriata.  All 
othar  original  copiaa  ara  Yilmad  beginning  on  tha 
first  paga  with  tt  printad  cr  illuatratad  impraa- 
sion.  and  ending  on  the  laa\'  paga  with  a  printad 
or  Illuatratad  impraaaion. 


Tha  laat  racordad  frama  on  aach  microficha 
shall  contain  tha  symbol  "-^  (meaning  "CON- 
TINUED "),  or  the  symbol  ▼  (meaning  "END"), 
whichever  appliaa. 


Laa  axemplairas  originaux  dont  la  eouvenure  an 
papier  eat  imprimte  sont  filmte  9n  commancant 
par  la  premier  plat  at  an  tarminant  soit  par  la 
damiAre  paga  qui  comporta  una  amprainte 
dlmpraaaion  ou  d'illustration,  soit  par  la  second 
plat,  seton  le  caa.  Toua  laa  autras  •..;ampiaira4 
originaux  sont  flimte  an  commandant  par  la 
premiere  page  qui  comporte  une  amprainte 
dimpreaaion  ou  d'llluatration  at  9n  tarminant  par 
la  damlAre  page  qui  comporte  une  telle 
amprainte. 

Un  dee  symbolea  suivants  apparaitra  sur  la 
dami^re  image  de  cheque  microfiche,  selon  le 
caa:  le  symbole  — »  signifle  "A  SUIVRE",  le 
symboie  ▼  signifle  "FIN". 


Mapa.  plataa,  charts,  etc..  may  be  Aimed  at 
different  reduction  ratioa.  Thoaa  too  large  to  be 
entirely  included  in  one  axpoaure  are  Aimed 
beginning  In  the  upper  left  hand  comer,  left  to 
right  and  top  to  bonom.  aa  marry  framee  aa 
required.  The  following  diagrama  illuatrate  the 
method: 


Laa  cartaa.  planchea.  tableaux,  ate.,  pauvent  4tra 
flimte  i  dee  taux  de  rMuction  dlff*rents. 
Loraque  le  document  eat  trop  grand  pour  itro 
reproduit  an  un  leul  clich4.  il  eat  film*  i  partir 
de  Tangle  supArieur  gauche,  de  gauche  k  droite. 
et  de  haut  tn  baa.  1%  prenant  la  nombre 
d'Imagee  i^ceaaaire.  Laa  diagrammaa  suivant? 
illuatrent  m  m*thode. 


1 

2 

3 

1 

2 

3 

4 

5 

6 

I 


>;^V^^^^^O 


THE 


13J546 

f/FW 


UNITED    STATES 


AND  THE 


NORTHEASTERN     FISHERIES 


A   HISTORY   OF  THE   FISHERY  QUESTION 


:'  * 


Vl 


■  V 


BY 


CHARLES  B.  ELLIOTT.  LL    B 


( 


4:J 


MIMNEAPOMS 

THE    UNIVERSITY    OK    MIVNESOTA 

1887 


THK 


UNITED   STATES   AND    THE    NORTHEASTERN 

FISHERIES    ■ 


,ui 


'  \ 


>-< 


cl. 


*      COPYKIOHT  BY 

CHARLES  B.  ELLIOTT 
1987 


W.  T.  COLt  t  CO. 
MIMNBArOLtS 


"The  public  prim,  hold  forth  the  taporunceol, he  fisheries     The  ' 

*        ,      M- Marbois  to  Count  de  Vergennes,  March  13,  i78i.  ^ 


Uniln/' ^'''''""  "^  '"'"  ^»'««J^«Wi.-the  two  great   Objects   of   the 
Gouvemeur  Morris  in  ConsUtutional  Convention  of  1887. 


Thia  paper  was  prepared  and  presented  to  the  Faculty  cf  the 
Fniversity  of  Minnesota  as  part  of  the  work  of  a  candidate  for 
■>e  Jegree  of  Doctor  of  Philosophy. 

I  am  indebted  to  the  !r.te  Prof.  Tohn  Norton  Pomeroj  for  the 

greater  part  of  the  translations     lom  French  writers  on  inter- 

lational  law,  and  to  the  officials  of  the  Department  of  State  at 

krVashington  for  their  coui^esy  in  allowing  me  access  to   the 

library  and  archives  of  that  Department. 

Nov.  31,  1887. 


i 

[ 


CONTENTS 


; 

Introduction     . 

t  " 

Part  I-Historical 
AcQorsrTiov  of  thk  Xortheasthrn  F- 
The  Fxshrrx„s  and  the  R.v  ^-^"««»« 

.  th.tr.atv  OK  ;;'"^--— .  -   - 

Thr  Fxshrrxks  at  thr  closr  ok'thk  r,   "        " 
D-pkrr..  Constructions  o.  t.      Tr/a  ""-^ 

Th.  Nhootxations  at  Ghknt         '  '  ^^  ^783 

The  Treaty  OF  1818  .  * 

THERECZPHOCXTVTREATV0FX854     '  "  * 

T.rE  Treat V  OF  WASHrNOTON    -  '  ' 

Tkmporar,  DxPx^OMATxc  Arraoe..;,  :  •        ■ 
Phhsent  State  OF  THE  Question     . 

Pakt  II_Thk  Treatv  of  ,S^8 
In  Gbnbral 

Rut-M  01-  COVSTHUCTION       .  '  '  ^  '  ' 

InD„pS«_ThcThr„Mil.Lte    . 
In  Temtonal  Waters 

To  Dry  uid  Cure  Fi.h 

To  Obuin  Shd..r,  Wood  .„d  W.t'r      ." 
To- Procure  B.i,,  p„         ,„ 

co.c.„:i  •""'"■"'""'-<"*  tk..„ 

Affknoix 


*5 

26 
40^ 

>  44 
50 


57  _^^ 
89 


90 

103 
'05 

106 
116 

«»7 

117 

118 
119 

133 
137 


»3o 
'35 


THE  UNITED  STATED    Axrr.^^ 

ELATES  AND  THE  NORTH- 

EASTERN  FISHERIES. 


'      INTRODUCTION. 


•horc  ol  the  British  North  Am,,  »"*^"""°"*=«<«m 
-  .disturbing  element  oftterTaZl?  t™""^"  ""  "PP^-e" 
«*.  few  „„,et,Ied  question,  ZZ'^  -^T"^'  "  »  <>»«  of 
o^U..  United  State,  „hich  Z  at  .1,:' \"" '°"'«"  "M-™ 
between  the  two  great  E„g,i,^  s"^' '"'":'  •*"■'  '""  'o  war 
From  ,t,  nature  it  i,  peculiarl.^.K  *  "f  °"'  °'  "Xworld. 
»«ling  between  the  p^!^  h'  ,  '"  •"  ""  ^"«  o/  in. 
S'««thr„.,it,ar™l~t;^,-"""'ed.     The  Uni;^ 

cer,a,n  peculiar  territoriafd'h,,  "„  ,t  T"  """  "»"  "old, 
^on.  Her  subject,,  while  pu™  „r.herr  "  °''  ""'•«"  - 
brought  into  direct  perso.  ,Uo„«c^  L,,h  r"-^"''^"'  '"  """ 
foreign  nation  eng^ed  ,n  ^h^  ""  '"'>'«''   of  such 

i««'o„,  of  wh,,  see*n,^o  thl  tr e™'  ''""'""°"'  """  """-I  ^ 
'"■on.  ConflicUng  interes  ,„„';:?:,':;"'""■«  -d  co^pe'! 
to    lead  to  collision,  which  ren,.,'  '""''"^"  "■«  li»ble 

»Pec.ve  nation,  difficult      E  I  „"'^°""''""'  "«"-"  »>«  re 
«"  of  iu  fisheries.     I.  ha.  l^^n  ,hr  T^"'"'  "■'  '""Po"- 
~"n.ry  to  g,v.  ,h„  indu„r7  ^"cnS"'  "'  ""^  ""ri-i-e 


— • «-  use 


wards  of  nations.     T 


■  •~*uaui  nations       T^  »u         t 
grnntcd  certain  e«fr«      ,               *««hemhavebe 
««  ...  '^  "  extraordinarv  Driv.U.,- i 


»-'«ori. 


of  War 


ryprivilege,  and  exemptions 


f  ishei 
■en    universally 
in  times 


lO 


THE    UNITED    STATES    AXD 


The  ♦isheries  are  the  nurseries  of   seamen,  "the   great   foun- 
tains   of  commercial  prosperity  and  naval  power,"  from  which 
are  drawn  skilled  and  hardy  sailors  to  man  ships  of  war  in  time  / 
of  need.  They  nurture  and  train  a  reserve  force  f  o  r  the  navies  of  the  ^ 
world.     Hence  they  have  always  been  fostered  and  encouraged. 
From  an  economic  point  of  view  the  fisheries  are  of   equal 
importance.     Countless  thousands  receive  from  them  their  chief 
article  of  food.     "  The  commercial  product^  obtained  from  the 
sea  are  more  numerous  and  important  than  would  be   generally 
supposed  by  those  who  have  not  looked  closely  into  the  matter. 
To  a  great  part  of  the  civilized  world  the  taking  of  the  cod,  the 
herring,  the  salmon,  the  mackerel,  the   sardine,  the   seal,   and 
other  fishes,  is  of  great  value  and  gives  employment  to  hundreds 
of  thousands  of  persons.     The  oil  obtained  from  the  seal,  cod, 
shark,  &c.,  is  used  for  lamps,  medicine  and  in  industry.     Many" 
parts   of  fish  are   employed  in  the  arts  and  manufactures:  as, 
the  scales  of  the  bleak  for   n^aking   false   pearls,  and  those  of 
other  fish  for  making  ornaments;  the  skins  of  the  seals  and  por- 
poises  f.     tanning  purposes.     Isinglass  is  obtained  from  the  air       ' 
or  swimmiMg  bladders  of  many.    Fish  roes  are  not  only  used  as 
fish  delicacies,  but  also  for  bait  in  some  fishing  grounds,  and  ex- 
cellent guano  is  made  from  the  offal  and  the  bones  of  fish.     The 
sea  is  more   abundantly  stocked  with   living  creatures  than  the 
land.     In  all  parts  of  the  world  a  rocKy  and  partially  protected 
shore  perhaps  supports  in  a  given  space  a  greater  number  of  in- 
dividual  animals  than  any  other  station. 

The  sea  is  filled  with  animals  of  several  kinds,  and  each  layer 
of  water  in  depth  seems  to  have  its  own   varieties,   thus  resem 
bling  the  changes  which  take  place  according  to  elevation  in  the 
organized  portions  of  the  land."  • 

The  supreme  importance  of  these  northeastern  fisheries  to 
thousands  of  citizens  of  the  United  States  who  live  along  the 
eastern  shores  can  hardly  be  appreciated  by  their  fellow  citizens 
living  inland.  Generation  after  generation  of  these  people 
hp.ve  followed  the  same  hardy  occupation.  Year  after  y.ir 
from  the  time  when  their  ancestors  first  visited  the  bleak  coasts 


" —    * •■*  -*  '••'-  "^■»'     "/    »  ■  A^.  oiinmons,  quoted  In 

Joncaa  on  Fisheries,  in  "Canadian  Economics,"  p.  73. 


1 


THE    NOHTH£ASTKRN    FISHERIES.  u 

they  have  made  the  same  annual  voyage.  Millions  of  dollars 
are  invented  in  the  business.  The  right  to  particip«te  in  these 
fisheries  has  always  been  claimed  by  them  and  its  justness  can- 
*)t  be  controverted.  The  absolute  right  of  a  Gloucester  fisher- 
man to  take  fish  off  the  Canadian  coast,  subject  to  the  treaty 
restrictions  made  by  his  government,  rests  on  the  same  title 
as  American  right  to  the  soil  of  Bunker  Hill. 

The  "fishery  question"  was  intimately  connected  with  the 
eajfly  history  ^f  the  United  States. 

The  men  who  signed  the  Treaty  of  Paris,  in  1783,  thought 
that  they  had  forever  placed  beyond  question  the  rights  and 
liberties  of  citizens  of  the  new  nation  in  the  fisheries.  Every 
generation  of  American  statesmen  can  bear  testimony  to  their 
error.  In  one  form  or  another  the  fishery  dispute  has  always 
been  before  the  public.  It  is  a  nut  which  our  Sutc  Depart- 
ment has  been  attempting  to  crack  for  more  than  a  hundred 
years,  and  the  only  result  is  the  hardening  of  the  shell. 

It  is  true  that  the  relative  importance  of  the  fisheries  has  de- 
creased amid  the  diverse  and  .multiform  pursuits  of  modem 
commercial  and  industrial  life,  until,  as  compared  with  the 
whole,  they  are  of  small  importance.  But  it  is  equally  true  that 
the  importance  of  an  international  question  is  not  governed 
solely  by  the  number  of  dollars  involved.  The  difficulty  is  not 
about  "a  few  fish"  but  about  the  true  construction  ot  a  treaty, 
and  the  duty  of  one  civilized  nation  towards  the  citizens  ol 
another. 


PART  I 


HISTORICAL 


!( 


/ 


THE  ACQUISITION  OF  THE  NORTHEASTERN 
FISHERIES. 


In  order  to   understand  the  fishery  question  it  is  necessary  to 

trace  its  history  and  to  consider  the  important  position  it  has  oc- 

'cupiedin   the   history   of   the   nation   and   of   the   States   and 

Provinces  situated  on  the  Atlantic   coast.     Before  the  division 

of  the  Bndsh  Empire  by  the   successful    revolt   of   the  North 

American   colonies,  the  valuable  fisheries  along  the  eastern  and 

northeastern  coasts  of  the  continent  were  the  property  of  the 

Empire,   open  to   the   free  and  common  use  of  all  its  citizens. 

The  history   of  the  northeistem  fisheries  dates  back  to  a  time 

soon  after  the  discovery  of  America.      They   were   known  to 

the  Normans  and  Biscayans  as  early  as  the  year  1504,  and,  for 

almost   a  century  before  any  attempt  was  made  at  colonization, 

these  adventurous  toilers  of  the  sea  pursued  their  perilous  calling 

on   the   shores  of  the  island  of  Newfoundland  and  the  adjacent 
mainland. ' 

In  1517  fifty  ships  were  engaged  in  the  Newfoundland    fish- 
eries, and  in  1577  the  French  fishermen  employed  one  hundred 
.fifty  vessels.' 


>  The  first  tc  use  these  fisheries  were  the  Basques  (the  people  of  Nor- 
mandy and  Brit^iny).  According  to  P^re  Fournier  the  Basques  wee 
busj  drawing  cod  from  the  water  and  had  given  the  name  Barsaiaos,  or 
Codlands,  to  Newfoundland,  Nova  Scotia,  and  Cape  Breton.  The  name 
Port-aux-Basques,  a  fine  harbor  near  Cape  Ray,  is  a  reminder  of  the 
Basque  fishermen.— Hatton  &  Harvey's  "  Newfoundland." 


*  Decay  of  EnsHsh    Rsherv  \ntf 


of  England,  vrV  8,  pp.  444.5.  Early  Newfoundland  fisheries.  Palfrey's 
History  of  Ne  .  England  vcl  i,  pp.  65^.  Early  New  En.jland  fisheries, 
Palfrey's  History  of  New  England,  vol.  3,  p.  54. 


i6 


THE    UNITED    STATES   AND 


The  value  of  the  industry  w  as  fully  appreciated  even  at  that 
early  day.  For  almost  two  centuries  the  great  rival  powers  of 
En^  and  and  France  struggled  for  their  "mastery  and  monop- 
oly, until  at  last  England  triumphed  and  France  lost  forever  her 
grasp  on  the  New  World  she  had  done  so  much  to  explore,  re- 
tammgonly  the  consoling  bei:.f  that  she  had  assisted  in  buildine 
up  a  power  m  the  west  which  would  one  day  revolt  and  riv^ 
her  conrjuerer.  ^  »« 

nritf '  rr^°"  ""^  '^'"  ^"'""^^^  ^^^°&  *^^"*°0^  ^^   com- 
prised m  what  .was  once   the   romantic  land  of  Acadia.      Its 

sovereignty  passed  from  France  to  England  and  from  England 

0  France  as  the  tide  of  war  ebbed  and  flowed  in  the  new  world 
and  m  the  old       Its  exact  boundaries  were  never  strictly  de- 

ZZ"t     K      •''"^  ""'   ^'^  '^''''y  °'  St.  Germain  in  1683,  it 
embraced  wha   is  now  Nova  Scotia,  New  Brunswick,  and   tha 
part  of  Maine  lying  between  the  St.  Croix  and  the   Kennebec 

th^/'^J^  'IV^  Utrecht,  in  1713,  England  claimed  for  Acadia 
^at  part  of  America  bounded   on   the   south   by   the   Atlantic 

l^n^r    X  ""T'  °"  '^'  "^''^^  ^y  ^«  S^-  Lawrence  river, 
and  on  the  east  by  the   Gulf  of  St.   Lawrence.     Within  this 

InT^n        '  T  "''"''  ^^"°"«Iy  desiginatea  by  French  and 

Indian   names.      By   the   English  a  large  part  of  the  territory 
was  called  Nova  Scotia.'  «  lemtory 

1  do  not  propose  here  to  follow  the  eventful  history  of  Aca. 

thenartr   '^Jr°"'^°"  ^^   '^"^^"^  ^^^^^  -  '"-^-ting 

Z  cnl       r^'T""  ^'^'""  ^^^^  P'^'y^^  '^  th^  history  of 
tiie  continent      Neither  England  or  France  cared  much   for   a 

and  of  so  little   value.      While   the   colonists   struggled   Ind 

fought  for  It  as  a  precious  possession,  their  sovereign,   whether 

P  w^torr'-fiT  ^""^-^^-^  *---  -  as";  valut'el 
Chries  I  ?o    ^?"' "  ^'^  ^^"^  ^^"^^   °^  European   politics. 

c  s^S^  I    H       .'  """''^  ^°  ^'^''^  ^"^  Cromwell  held   the 
!!!!;!i:;^   and   erected  Nova  Scotia  into  an  English  colony 

'  Wingor'«  Ka,..«n 

4«a. 


€  and  Criticai  iiUiurjr  of  America,  vol.  v,  pp.  405- 


THE    NORTHEASTERN-    FISHERIES.  17 

Upon  the  restoration  of  the  Stuarts  it  became,  by  the  treaty  of 
Breda,  Frenrh  Territory.     By  the  Treaty  of  London,  in  1686, 
the  two  powers  were  confirmed  in  their  respective  possessions. 
But  the  French  took  no  steps  toward  establishing  their  rule  on 
a  firm  basis,  and,  during  the  war  which   followed  the  accession 
of    William   and  Mary,  the  Acadian  land  was  again  conquered 
by   an  expedition  from  Boston  under  the  command  of  Sir  Wil- 
liam Phips.     On  the  2Sth  day  of  April,  1690,  Phips  sailed  from 
Boston    with    a  fleet   consisting  of  one  frigate,  two  sloops  and 
four  smaller  vessels,  and,  after  reducing   Port  Royal,  St.  Johns, 
and  other   settlements,    returned    to  New  England  leaving  an 
English  governor  in  command.     This  expedition  was  a  triumph 
for  the   men  of  New   England,  ind,  when  Phips  became  the 
first  royal  governor  of  Massachusetts,  Acadia  formed  a    portion 
of    her   domain.      But   by  the  Treaty  of  Ryswick  in  1697,  the 
indignant  colonists  ?aw    the    conquered    territory    again    relin- 
quished  to  France.     Goverror  Villabon  soon  after  notified    the 
governor  of  Massachusetts  that  he  had  royal  instructions    from 
France   to   seize   every   English    fisherman    found  east  of  the 
Kennebec  river. 

The  beginning  of  the  reign  of  Queen  Anne  found  England 
and  France  again  engaged  in  war  and  among  the  causes  was 
the  claim  of  France  to  the  whole  of  the  fishing  grounds.  New 
England  sent  another  fleet  and  in  17 10  Nova  Scotia  was  once 
more  an  English  colony.  Three  years  later  by  the  Treaty  of 
Utrecht,  England  obtained  a  monopoly  of  the  northeastern 
^fisheries.  As  showing  the  importance  attached  to  the 
fisheries  at  this  time,  it  is  noteworthy  that  among  the  charges 
against  the  Earl  of  Oxford,  indicted  for  high  treason,  was  one 
that  he  had  in  defiance  of  an  Act  of  Parliament  advised  the 
Sovereign  that  "  the  subjects  of  France  should  have  the  liberty 
of  fishing  and  drying  fish  m  Newfoundland." 

"  But  such  has  been  the  advance  of  civilization  and  of  the 
doctrine  of  human  broth.prhriri;?  that  sr-.  ^.-t  -.-u:-i- 
flagrant  crime  in  his  own  age  has  become  one  honorable  to 
his  memory.  The  great  principle  he  thus  maintained  in  dis- 
g  ice,  that  the  seas  of  British  America  are  not  to  be  hei-i  by 
British  subjects  as  a  monopo:  ^ ,  .,nd  to  the  exclusion  of  all  other 
people,  has  never  since  been  wholly  disregarded  bv  any  British 


i8 


THE    UNITED    STATES    AND 


minister,  and  we  may  hope  will  eVer  now  appear  in  British  di- 
plomacy to  mark  the  progress  of  liberal  principles  and  'man's 
humanity  to  man.'"  ' 

But  the  loss  of  Nova  Scotia  did  not  destroy  the  French  fish- 
ery interests.  They  fortified  Cape  Breton,  and  in  1721  their 
fleet  of  fishing  vessels  numbered  four  hundred.  Behind  the 
fortress  of  Louisbourg  they  determined  to  make  a  final  stand. 
That  marvelo',.s  fortification,  baptized  in  the  name  of  the  sover- 
eign, had  required  twenty-five  years  to  build  and  thirty  millions 
of  livres  had  been  spent  upon  it.  From  its  massive  walls  two 
hundred  cannon  frowned  upon  the  wilderness.  "  So  great  was 
its  strength  that  it  was  called  the  Dunkirk  of  America.  It  had 
nunneries  and  palaces,  terraces  and  gardens.  That  such  a  city 
rose  upon  a  low,  desolate  island  in  the  n.fancy  of  American 
coloiiization  appears  incredible;  explanation  is  alone  found  in 
the  fishing  enthusiasm  of  the  period." 

In  1 745  *  fl^^t  sailed  from  Boston  for  the  conquest  of  Louisbourg. 
ItwascommandedbyPepperrell,  the  son  of  a  Mount  Desert  fisher- 
man,  and  three-fourths  of  the  troops  were  Massachusetts  men.  The 
colonial  army  landed  May  30,  1745,  and  after  an  investment 
of  forty-nine  days,  during  which  nine  thousand  cannon  balls 
and  six  hundred  bombs  were  thrown  into  the  besieged  city,  the 
French  commander  surrendered.' 

The  importance  attached  to  this  evi  it  at  the  time  is  now 
hard  to  realize.  Sn»ollett  calls  the  conquestof  Louisbourg"  the 
most  important  achievment  of  the  war  of  1744."  In  1775  the 
victory  was  pronounced  in  the  House  of  Commons  "an  ever- 
lasting memorial  to  the  zeal,  courage  and  patriotism  of  the 
troops  of  New  England." 

It  was  said  at  the  time. that  New  England  gave  ft-  e  to 
Furofe  by  raising  an  army  and  transporting  to  Acadi  i  four 
thousand  men,  whose  success  proved  an  equivalent  for  all  the 
victories  of  France  on  the  continent. 

"I    would     hang    any     man     who    proposecd    to  exchange 


•  Sabine's  Report  on  American  Fisheries,  p.  14. 

*  The  English  fleet  under  tlie  cornmuml  of  Adtuiral  Warren  rendered 
but  little  asdidtancc  other  than  ttu-  capture  ot  a  Frtnch  frig.itc  on  if>  -vay 
to  relieve  the  garrison.  Vv'olcotfd  Journal,  In  Collection  Connecticut  His- 
torical Society,  vol.  I,  p    165. 


THE    NORTHEASTERN    FISHERIES. 


»9 


Louisbourg  for  Portsmouth,"  said  Lord  Cl.osterfield.  But  the 
interests  of  the  colonists  were  again  to  be  sacrificed  to  the  in- 
terests of  the  sovereign,  and,  by  the  Treaty  of  Aix-Ia-Chapelle, 
in  1748,  Cape  Breton  was  restored  to  France.'  Louisburg 
was  rebuilt  and  the  old  dispute  about  boundaries  was  renewed. 
French  diploir.acy  was  busily  engaged  in  trying^  to  repair  the 
disasters  which  had  befallen  her  arms.  England  attempted  to 
detach  Spain  from  France  by  promising  to  acknowledge  her 
claim  to  participate  in  the  fisheries.' 

In  1758  Louisbourg  was  again  besieged  by  an  army,  under 
Lord   Amherst,   and    again    it   was   through  the  courage  and 
energy  of  the  men  of  the  new  world  that  victory  attended  the  Brit- 
ish  arras.    Nearly  one-third  of  the  effective  men  of  Massachusetts 
were  engaged  in  this  expedition,  and  it  was  at  the  time  said  in  the 
House  of  Commons  that  of  the  seamen  employed  in  the  Brit- 
ish navy  ten  thousand  were  natives  of  America.     Many  of  the 
Americans    who    were    engaged   in   the    wars    of    1754  and 
1756    became    famous    during     tht     struggle     for     Indepen- 
I  dence.    At  the  siege  of  Louisbourg  were:  Thornton,  who  signed 
'  the  Declaration  of  Independence;     Bradford,  who  commanded 
a  continental   regiment;    Gridley,  who  laid   out  the  works  on 
Bunker  Hill.     Washington  was  on  the    frontier  of    Virginia. 
Among  thos'-  engaged  in  one  or  both  wars  were  Sears,  VVol- 
cott,  Williams,  and  Livingston,  all  signers  of  the  Declaration  of 
I^dependence ;    Montgomery,   who    fell    under    the    walls    of 
Quebec,  Prescott,  Gates,  Mercer,  Morgan,  Thomas,  who  com- 
manded in  Canada  after  the  fall  of  Montgomery,  James  Clin- 
ton, Stark,  Spence     Israel  and  Rurus  Putnam,  Nixon,  St.  Clair, 
Gibson,  Bull,  Charles  Lee,  Butler,  C.-mpbell,  Dyer,  pfterwards 
Chief  Justice  of  Connecticut ;  Craig,director-general  of  the  Amer- 
ican hospital  and  a  friend  of  Washington,Jones,  the  physician  of 
Frankhn,  and  John    Morgan,   director-general    and  physician- 
general  of  the  army.     "  It  wa-,  in  Nova  Scotia  and  Can.ida,  and 
on  the  Ohio,  then  — at  Port  Royo',  Causeam,  Louisbourg,  Que- 
bec, and  in  the  wilds  of  Virginia .id  in  putting  down  French 

'  CorreRpondence  of  Duke  of  Hcdford.  vol.  v,  p.  18. 
»  Isham's  The  Fliher)r  Question,  p.  jo,  citiiijj   Bussy's  '•  Private  Mem- 
oirs to  Eng.  Ministry." 


20 


THE    UNlTiD    STATES    AND 


pretensions.,  that  our  fathers  acquired  the  skill  and  experience 
necessary  for  the  successful  assertion  of  their  own." 

By  the  treaty  of  Paris,  concluded  February  lo,  1763,  Can- 
ada and  all  its  dependencies  were  formally  ceded  by  France  to 
England,  reserving  to  France  the  liberty  of  fishing  and  drying 
fish  on  that  part  of  the  island  of  Newfoundland  specified  in  the 
thirteenth  article  of  the  treaty  of  Utrecht,  which  treaty,  with 
the  exception  of  what  related  to  the  island  of  Cape  Breton  and 
the  other  islands  and  coasts  in  the  mouth  of  the  St.  Lawrence 
River  and  in  the  Gulf  of  St.  Lawrence,  was  renewed.  His 
Britannic  Majesty  consented  to  leave  to  the  subjects  of  the 
Most  Christian  King  the  liberty  of  fishing  in  the  Gulf  of  St. 
Lawrence,  on  condition  that  they  kept  three  miles  from  the 
coast  of  the  continent  and  of  the  islands  belonging  to  Great 
Britain.  The  subjects  of  France  were  not  to  be  permitted  to 
Lome  within  fifteen  lea^^ues  of  the  coast  of  Cape  Breton  for  the 
purpose  of  fishing.  Great  Britain  ceded  to  France  the  islands 
of  St.  Pierre  and  Miquelon  in  full  right,  to  serve  as  shelter  for 
the  French  fishermen  on  condition  that  they  be  not  fortified,  or 
occupied  for  purposes  other  than  the  fishery. 

This  concession  was  received  with  great  displeasure  in  Eng- 
land, where  it  was  said  that  "the  fisheries  were  worth  more 
than  all  Canada."  Pitt,  backed  by  the  colonists  and  the  Lon- 
don merchants,  favored  the  total  exclusion  of  the  French  from 
the  fisheries;  but  Bedford  believed  that  such  a  proposition 
woul'j  put  an  end  to  the  negotiations  and  cause  a  renewal  of 
hostilities.'  Junius,  in  his  celebrated  letter,  charged  his  grace 
with  bribery.  "Belleisle,  Goree,  Guadaloupe,  St.  Lucia,  Mar- 
tinique, the  Fishery,  .md  the  Hivannah  are  glorious  monuments 
of  your  grace's  talents  for  negotiation.  My  lord,  we  are  too  well 
^xquainted  with  your  pecuniary  character  to  think  it  possible 
that  so  many  public  sacrifices  should  have  been  made  without 
Some  private  compensations.  Your  conduct  carries  with  it  an 
intem/il  evidence  beyond  all  the  legal  pr  jofs  of  a  court  of  jus- 
tice." 


•  Corresp.  Dukr  of  Bedfcrd  vol.  v.,  pp.  xvlil-iai.  The  French  con- 
•oicd  themselves  with  the  rettectlon  that  they  could  retaliate  by  the 
exclusion  of  Engliiih  fish  from  French  markets. 


'\ 


TH£    NORT.'IEASTERN    FISHERIES. 


31 


THE  FISHERIES  AND  THE  REVOLUTION, 


No  longer  disturbed  by  the  French  fishermen,  the  colonists 
of  New  England  prosecuted  the  fisheries  with  vigor  and  energy, 
and  were  encouraged  by  laws  which  exempted  boats  and  tackle 
XTom  taxation.  The  trade  was  flourishing  and  profitable  and 
the  merchants  were  willing  to  take  many  chances.  In  1764 
the  Massachusetts  cod  fisheries  were  valued  at  jCi55,ooo  sterling 
per  annum.  A  huge  painted  codfish  hung  in  the  s-^te  H'^use, 
as  a  constant  reminder  of  the  "staple"  of  the  colony. 

The  fish  were  sent  to  France,  Holland,  Spain,  Madeira, 
Btazil,  Paramaribo  and  the  southern  colonies.  Less  than  one- 
third  were  sent  to  England.'  The  poorer  qualities  were  sent 
to  the  West  Indies  and  exchanged  for  rum,  bullion  and  com- 
modities which  could  be  in  turn  exchanged  for  articles  of  Eng- 
lish manufacture.  But  fishing  was  indirectly  to  be  again  "a 
thing  fatall  to  the  plantation."  The  fish  had  become  scarce  on 
the  immediate  coasts  of  New  England,  and  stations  were 
planted  by  the  wealthy  merchants  at  Canso  and  at  points  on 
the  Bay  of  vZhaleurs.  But  the  industry  was  destined  to  re- 
ceive a  fatal  blow  from  the  home  government.  Parliament  de- 
cided to  enforce  the  Navigation  laws,  which  effectually  checked 
the  export  trade.  The  West  India  products  were  made  dutia- 
ble in  colonial  ports  and  the  French  again  obtained  virtual  con- 
trol of  the  fisheries.  Massachusetts  merchants,  thus  deprived  of 
their  trade,  becunie  more  and  more  rebellious,  loaded  their  ves- 
sels with  the  fishing  plants  and  sold  them  abroad.  As  far  as 
parliamentary  action  could  go,  the  fisheries  were  destroyed. 
But  evasions  of  the  law  and  the  intercolonial  trade  sufficed  to 
keep  the  industry  alive  and  the  fishing  towns  pro.sperous  up  to 
the  end  of  the  Revolution.'  Stephen  Higginson  testified  be- 
fore a  committee  of  the  House  of  Commons  that  if  a  pending 
bill  to  deprive  New  England  of  participation  in  the  codfish- 
ciics    siiuuiu    puss,    it     would     take    ihe    ir.euns    ol    iiveiihood 


'  Franklin's  testimony  before  a  Conrnittee  ot  the  House  of  Commons. 
•Jiham's  The  Fishery  Question,  p.  34. 


THE    UNITED    STATES    AND 


from  6200  inhabitants  of  Massachusetts  and  compel  loooo    ner- 
sons  to  seek  employment  elsewhere." 

So  steadily  were  the  fisheries  pursued  by  the  people  of  New 
England  that  fifty  years  after  the  landing  01  the  Puritans,  /n 
English  writer  of  high  authority  wrote  "New  England  is  the 
most  prejudicial  plantation  in  this  kingdom,"  and  the  reason 
given  was  because  "of  all  the  American  plantations,  his  Majesty 
has  none  so  apt  for  building  of  shipping  as  New  England,  nor 
any  comparatively  so  qualified  for  the  breeding  of  seamen,  not 
only  by  reason  of  the  natural  industry  of  that  people,  but  prin- 
cipally by  reason  of  their  cod  and  mackerel  fisheries,  and,  in 
my  opinion,  there  is  nothing  more  prejudicial,  and  in  prospect 
more  dangerous,  to  any  mother  kingdom,  than  the  increase  of 
shipping  in  her  colonies,  plantations  or  provinces." 

The  policy  of  the  crown  from  the  accession  of  the  Stuarts 
down  to  the  Revolution  was  in  strict  accordance  with  these  ap- 
prehensions. The  course  of  legislation  was  directed  toward 
restraining  and  breaking  down  the  commerce  of  the  colonies. 
^"  ^733  Parliament  passed  an  act  imposing  duties  on  rum,  mo- 
lasses, and  sugar  imported  into  the  colonies  from  the  West 
India  islands  other  than  British.  This  act  was  designed  to 
destroy  the  valuable  colonial  trade  with  the  French,  Dutch 
and  Spanish  islands,  where  the  products  of  the  islands  were  ex- 
changed for  fish.  The  penalty  for  violation  of  the  law  was 
the  forfeiture  of  the  vessel.  The  people  of  the  colonies  in- 
sisted that  they  could  not  continue  to  prosecute  the  fisheres 
with  profit  unless  they  could  sell  their  fish  to  the  southern 
planters  and  import  molasses  for  manufacture  into  spirits  for 
domestic  consumption  and  trade  with  the  Indians.  A  fleet  was 
sent  to  enforce  the  law  but  they  found  "ye  fishermen  to  be 
8tubbern»  fellowes"  and  the  New  Englanders  managed  to  con- 
tinue the  rade  to  a  considerable  extent.  In  1764  the  act  was 
renew-  .and  a  determined  effort  made  to  collect  the  duties,  with 
tl-  .latural  result  of  frequent  collisions  between  the  shipmasters 
."VI  the  officers  of  custom  in  Boston,  Salem,  Gloucester,  Fal- 
mouth (Portland),  and  other  ports  of  New  England.  The 
colonists  strugeled  manfullv  against  whnt  seemed  a"  a^^^"^-* 

i- 


'  W.  Bradford,  "  Biographical  Notices,"  p.  329. 


THE    NORTHEASTERN    FISHKRIF.S. 


23 


to  ruin  their  business  in  order  to  appease  the  clamor  of  the 
planters  of  the  British  islands,  and  test  the  ability  of  the 
government  to  raise  money  in  America  under  the  "sugar  and 
molasses  acts,"  '  The  "molasses  excitement"  is  interesting  as 
being  one  of  the  earliest  of  the  irritating  events  w^hich  led  to 
the  Revolution  and  as  showing  how  early  the  fishery  question 
became  an  important  factor  in  American  politics.  Massachu- 
setts remons  aiied  earnestly  against  the  law,  and  in  1764  the 
Council  and  House  of  Representatives  m  answer  to  the  speech 
of  the  Governor,  said  that  "our  pickled  fish  wholly,  and  a  great 
fart  o/our  codfish,  are  only  fit  for  the  West  India  market. 
The  British  islands  cannot  take  off  one-third  of  the  quantity 
caught;  the  other  two-thirds  must  be  lost  or  sent  to  foreign 
plantations,  where  molasses  is  given  in  exch.inge.  The  du.y 
on  this  article  will  greatly  diminish  the  importation  hither;  and 
being  the  only  article  allowed  to  be  given  in  exchange  for  our 

fish,  a  less  quantity  of  the  latter  will  of  course  be  exported 

the  obvious  effect  of  which  must  be  a  diminution  of  the  fish 
trade,  not  only  to  the  West  Indies  but  to  Europe,  fish  suitable 
for  both  these  market^ being  the  produce  of  the  same  voy^^. 
If,  tl.erefore,  one  of  these  markets  be  shut,  the  other  cannot** 
supplied.  The  loss  of  one  is  the  loss  of  both ;  as  the  fishery 
must  fail  with  the  loss  of  eitl  er."  »  That  these  evils  were  not 
imaginary  is  shown  by  a  letter  of  Oliver,  Secretary  of  Mas- 
sachusetts, to  Jackson  the  colonial  agent,  written  in  June, 
1765.'  The  state  of  the  public  mind  is  illustrated  by  the  fact 
that  it  was  charged  and  believed  by  the  opponents  of  the  gov- 
ernment that  the  crew  of  a  captured  fishing  vessel  were  put  to 
death  by  the  captain  of  a  British  cruiser. 

In  1775  the  final  blow  came.  Parliament  determmed  to  starve 
the  colonists  into  submission.  On  the  loth  of  February 
Lord   North    noved  "that  leave  be  given  to  bring  in  a  bill 


*  1.  e  southern  colon.  ■  could  not  sympathiie  with  the  people  of  New 
England  in  the  contesi  V  vhat,  in  ridicule,  they  called  "  cheap  sweet- 
ening." The  "  petty  dealers  in  codfish  and  molasses  "  had  to  struggle  on 
alone. 

»  See  Burke's  "  Observations  "  on  a  publication  called  "  The  Present 
SUte  of  the  Nation"  (1769). 

•  Sabine's  Report  on  American  Fisher' ^s,  p.  137. 


24 


THE    UNITED    STATES    AND 


to    restr    .      tiie    trade    and    commerce  of    the    provinces  of 
Massachusetts     Bay     and     New      Hampshire,     the      colonies 
of    Connecticut    and    Rhode  Island    and    Providence    planta- 
ion,   in    North   America,   to   Great  Britain,   Ireland,  and   the 
British  islands  in  the  West  Indies;  and  to  prohibit    such  prov- 
inces   and    colonies    from    carrying    on    any    fishery    on  the 
b&Jiks  of  Newfoundland,  or  other  places   therein  to  be  men- 
tioned, under  certain  conditions,  and  for  a  time  to  be  limited." 
Upon  thia  resolution  there  was  a  long  and  interesting  debate 
but  Lord  North's  motion  was  agreed  too  by  a  vote  of  261  to  85. 
On  the  28th  of  February  the  bill  was  taken  up  and  testimony 
heard   as   to   the   value   of   the  fisheries  and  the  probable  ef- 
fect of  the  bill  if  it  should  pass.     The   examination  was  con- 
ducted by  Mr.  David  Barclay,  the  agent  of  the  committee  of 
North    American    merchants.      Among    the    witnesses    were 
Stephen   Higginson,  ''  from    Salem,  in  the  Massachusetts   Bay, 
a   merchant,"  John    Lane,    a    New    England    merchant,   and 
Seth  Jenkins,  from  the  island  of  Nantucket.      All  agreed  that 
the  passage  of  the  bill  would  work  irreparable  injury  to  the 
colonists.     In  answer  to  a  question  as  tp  how  long  the  people 
of  New  England   could  exist   without   the   fisheries,  Jenkins 
replied,  "■'Perhaps  three  month:'       The  consideration  of  the 
bill  was   again   resumed  on   t;  of    March  when  Burke 

opposed  it  III  a  speech  01  great  bitterness;  but  the  House  "re- 
solved that  the  bill  do  pass,"  and  tuat  "Mr.  Cooper  carry  the 
bill  to  the  Lords  and  desire  tl.eir  concurrence."  Mr.  Cooper 
appears  to  have  performed  his  part  zealously  for  the  Lords  gave 
the  bill  immediate  consideration  and  also  examined  witnesses. 
After  a  long  and  animated  debate,  the  bill  finally  passed  by  a 
decided  majority.  The  twenty-one  peers  of  the  minority,  in  a 
state  paper  of  great  eloquence,  entered  a  solemn  protest.  "  We 
dissent,  because  the  attempt  to  coerce,  by  famine,  the  whole 
body  of  the  inhabitants  of  great  and  populous  provinces  is  with- 
out example  in  the  history  uf  this,  or,  perhaps,  of  any  civilized 
nation,  and  is  one  of  these  unhappy  inventions  to  which  Parlia- 
ment is  driven  by  the  JifHculties  which  daily  multiply  upon  us 
from  an  obstinate  adherence  to  an  unwise  plan  of  governrrsf  r.» 
Wt  do  not  know  exactly  the  extent  of  the  combination  against 
our  commerce  in  New  England  and  the  other  colonies;    but  we 


THE    SO[lTnEAiI£RX,  FISHERIES. 


25 


do  know  the  extent  of  the  punishment  we  inflict  upon  it,  which 
is  universal,  and  includes  all  the  inhabitants;  among  these, 
many  are  admitted  to  be  innocent,  and  several  are  alleged  by 
ministers  to  be,  in  their  sense,  even  meritorious.  Thot  govern- 
ment which  attempts  to  preserve  its  authority  by  destroying  the 
trade  of  its  subjects,  and  by  involving  the  innocent  and  guilty 
in  a  common  ruin,  if  it  acts  from  a  choice  of  such  means,  con- 
fesses itself  unworthy;  if  from  inability  to  tind  any  other,  ad- 
mits itself  incompetent  to  the  ends  of  its  institution." 

Having  destroyed  the  fisheries  of  New  England,  Lord  North, 
on  the  nth  of  April  moved  that  the  House  resolve  itself  into  a 
committee  of  the  whole  on  the  27th  instant,  to  consider  the  en- 
couragement   necessary    to    be    given   the    "isheries  of  Great 
Britain  and  Ireland.     A  bill  was  passed  with   hat  object  in  view, 
and  although  L.ord   North   disclaimed  any   resentment  against 
^  America,    it    was    beyond    doubt  the  culmination  of  a   policy 
-  having  for  i^    object    the  building  up  of    the  British  tisneiies 
'  at   the   expense    of    the    colonies.      But    the    now   thoroughly 
1  aroused  colonists,  by  their   delegates   in    Congress  assembled, 
attempted    to  retaliate    by    prohibiting  the    sale    of  supplies  to 
British  fishing  vessels. 

Lord  North  evidently  hoped  to  starve  the  colonists  into  sub- 
mission and  it  Wat  feared  in  some  quarters  that  such  would  be 
the  effect  of  his  policy.  Silas  Deane,  who  was  then  in  Par>s 
soliciting  aid  from  the  French  government,  in  an  account  of  an 
interview  with  Count  de  Vergennes,  dated  July,  1776,  and 
transmitted  to  the  Secret  Committee  of  Congn  s,  says,  "He 
asked  me  many  questions  with  respect  to  the  colonies;  but 
what  he  seemed  most  to  want  to  be  assured  of,  was  their  ability 
to  subsist  without  their  fisheries,  and  under  the  interruption  of 
their  commerce.  T  ■  this  I  replied,  that  the  fis.heri°s  were 
never  carried  on  but  by  a  part  of  the  colonies,  and  by  tnem  not 
90  much  as  a  means  of  subsistence  as  of  commerce;  that  the 
fisheries  failing,  those  employed  in  them  turned  part  to  agricul- 
ture and  a  part  to  the  army  and  navy." ' 

'  For  an  account  o£  Lord  North's  cour  see  "  Extract*  (rem  the  letter* 
of  George  III  to  Lord  North,  selected  by  Lord  Holland  from  the  man- 
uscript* of  Sir  James  Mackintosh,"  in  appendii  to  Sparks'  Life  of  Wash- 
lnf(ton,  vol.6. 


26 


THE    UNITED    STATES    AND 


I  have  follcwed  the  course  of  tl  is  legislation  somewhat  mi- 
nutely because  it  shows  how  Iarj,,e  a  pUicc  in  the  Hves  of  the 
colonists  the  fislierles  occupied,  and  the  part  they  played  as 
among  the  causes  which  led  to  the  Revolution.* 


THE  TREATY   OF   1783. 


Upon  the  beginning  of  hostilities  the  fisheries  were  necessar- 
ily abandoned.  But  that  the  colonists  fully  appreciated  their 
value  and  their  own  share  in  their  acquisition  is  shown  by 
every  act,  resolution  and  letter  in  which  the  subject  is 
mentioned.  Among  the  reasons  assigned  by  the  old  Con- 
gress for  the  necessity  of  reducing  Quebec  and  Halifax,  was 
that  "the  fisheries  of  Newfoundland  are  justly  considered  the 
basis  of  a  good  marine."  ^  On  the  2'jih  day  of  May,  1779, 
on  motion  of  Burke,  seconded  by  Drayton,  it  was  resolved 
"That  in  no  case,  by  any  treaty  of  p;ace,  the  common  right  of 
fishing  be  given  up."  On  the  24th  of  June  following,  on 
motion  of  Gerry,  it  was  voted  and  Adams  was  instructed 
"that  it  is  essential  to  the  welfare  of  all  the  United  States,  that 
the  inhabitants  thereof,  at  the  expiration  of  the  war,  should  con- 
tinue to  enjoy  the  free  and  undisturbed  exercise  of  their  com- 
mon right  to  fish  on  the  banks  of  Newfoundland  and  the  other 
fishing  banks  and  seas  of  North  America,  preserving  inviolate 
the  treaties  between  France  and  the  United  States."^ 

On  the  1st  of  J"'y  a  resolution  was  passed  for  an  explana- 
tory article  to  the  minister  at  the  court  of  Versailles,  whereby 
the  common  right  to  the  fisheries  was  to  be  more  explicitl)' 
guaranteed  to  the  inhabitants  of  the  States  than  it  was  by  exist- 
ing treaties.  On  the  17th  of  July,  in  reference  to  the  treaty  with 
England,  and  again  en  the  29th  of  the  same  month,  in  a  motion 


ijosiatt  Quincy,  in  a  speech  in  the  Senate  in  1808,  enumerated  the 
principal  causes  which  led  to  a  separation  from  Great  Britain  and 
included  among  them  the  "embarrassment  of  the  fisheries." 

*  Plant  for  reducing  the  Province  of  Canada  refeired  to  in  the  In- 
Svruciiori  o:  iioiiuinuic  ii.  r'rankiiii,  Miiii»ici  10  the  Court  ot  France: 
Secret  Journals  of  Con^^ress,  vol.  2,  p.  1 14. 

'  Secret  Journals  of  Congress,  vol.  3,  p.  184. 


THE    XOKTHKASTEKX    M.-IinUIES. 


»7 


by  McKean,  s:  .ondecl  In  Huntington,  it  was  resolved  that 
if,  after  the  treaty  of  peace,  England  >,hould  molest  the  cit- 
izens of  the  United  States  in  the  exercise  of  tl.  ir  common 
rights  in  the  fisheries  it  should  be  considered  a  sufficient  cause 
for  war  and  the  force  of  the  Union  should  be  exerted  to  obtain 
redress  for  the  parties  injured,' 

Anticipating  future  trouble.  Congress  endeavored  to  secure 
from  the  French  King  an  agreement  to  mai-.-  common  cause 
against  England  for  the  protection  of  the  tisheries,  and  on 
August  14,  1779,  Franklin  was  instructed  to  propose  such  an 
article.'' 

In  October,  1781,  the  Massachusetts  General  Court  passed 
a  resolution  instructing  its  delegates  in  Congress  to  urge  the 
importance  of  the  fisheries  to  that  commonwealth,  and  asking 
that  in  any  negotiations  for  peace  the  free  and  unmolested  ex- 
ercise of  the  right  be  continued  and  secured  to  the  subjects  of 
the  United  States.  The  resolution  was  presented  to  Congress 
in  August,  1782,  and  was  referred  to  a  committee,  consisting 
of  Lovell,  Carroll  and  Madison.  This  committee  reported 
on  the  8th  of  January,  1782,  emphasizing  the  common 
right  to  the  fisheries  and  recommending  that  the  King  of 
F  e  be  urged  to  use  his  best  efforts  to  obtain  for  his  allies  a 
stipulation  on  the  part  of  Great  Britain  not  to  molest  them  in 
the  common  use  of  the  fisheries.*  This  report  was  referred 
to  another  committee  consisting  of  Carroll,  Randolph  and 
Montgomery,  which  reported  on  the  i6th  of  August  that 
they  had  gathered  facts  and  observations  which  they  rec- 
ommended be  referred  to  the  secretary  of  foreisn  affairs  to  be 
by  him  digested,  completed  and  transmitted  to  the  minister  pleni- 
potentiary for  use  in  the  negotiation  of  peace.  .The  report  was 
strongly  in  favor  of  the  common  right.* 

These, resolutions  were  violently  opposed.     It  was  declared 


»  See  Reports  on  Common  Rights  of  the  States  in  the  Fisheries:  Se- 
cret Journals  of  Congress,  vol.  3,  pp.  151,  161 ;  Hamilton'*  Life  of  Alex- 
ander Hamilton,  vol.  3,  p.  ^i6. 

:':p:crnu::c  ccrrcipoaucin-c  ol  the  Kcvuiutiun,  vol.  3,  p.  lOI. 

»  Secret  Journals  of  Congress,  vol.  3,  p.  15S. 

♦  Facts  and  observations  in  support  of  the  several  r'aims  -  f  the  United 
States,  not  included  in  their  ultimatum  of  15th  of  June,  17S  Secret  Jour- 
nals of  Congress,  vol.  3,  p.  161. 


aS 


THE    UNITED    STATES    AND 


that  it  was  absurd  to  expect  that  a  war  commenced  for  freedom 
should  be  continued  for  the  privilege  ol  catching  fish.  Gerry, 
of  Massachusetts,  replied:  "It  is  not  so  much  fishing,  as 
enterprise,  industry,  employment.  It  is  not  fish  merely  which 
gentlemen  sneer  at;  it  is  gold,  the  product  of  that  avocation. 
It  is  the  employment  of  those  who  would  be  otherwise  idle,  the 
food  of  those  who  would  otherwise  be  hungry,  the  wealth  of 
those  who  would  otherwise  be  poor,  that  depend  upon  your 
putting  these  resolutions  into  the  instructions  of  your  minister." 

As  we  have  seen,  Adams  had  been  instructed  that  the 
common  right  of  fishing  should  in  no  case  be  given  up,  but 
in  July,  1781,  Congress  adopted  a  declaration,  that  "al- 
though it  is  of  the  utmost  importance  to  the  peace  and  com- 
merce of  the  United  States  that  Canada  and  i>fova  Scotia  should 
be  ceded,  and  more  particular!"  that  their  equal  common  right 
to  the  fisheries  should  be  guaranteed  to  thei..,  yet,  a  desire  of 
terminating  the  war  has  induced  us  not  to  make  the  acquisition 
of  these  objects  an  ultimatum  on  the  present  occasion." 

That  we  finally  secured  the  right  to  the  fisheries  was  due  to 
the  zeal  of  Adams  and  his  associate  commissioners  and  not  to 
Congress.' 

At  this  point  the  influence  of  European  diplomacy  begins  to 
appear.  It  is  now  well  established  that  France,  the  fraternal 
ally  of  the  new  Republic,  was  engaged  in  a  game  of  duplicity, 
possibly  rendered  necessary  by  her  compact  with  the  King  of 
Spain.* 

»  Works  of  Madison,  vol.  a,  p.  595. 

» Jay's  The  Fishery  Dispute,  p.  35. 

John  Adams  regarded  the  French  minister  as  one  of  ♦he  greatest  ene- 
mies of  the  United  States,  believed  that  he  was  scheming  to  straighten 
our  boundarieo.  and  contract  our  fisheries.  He  made  no  secret  of  his 
belief  that  to  think  of  gratitude  to  France  was  the  greatest  of  follies  and 
that  to  be  influenced  by  it  would  be  ruin.  Franklin  stood  firm  by  the 
Court  and  wrote  to  Livingston  in  his  patronizing  way,  respecting  the 
Insinuations  o*  Adams  against  the  Court,  "and  the  instances  he  supposes 
of  their  ill-will  against  us,  which  I  take  to  be  as  imaginary  as  I  know  his 
f  mcies  to  be,  that  the  Count  de  Ver^ennes  and  myself  are  continually 
plotting  against  him  and  employing  the  newswriters  of  Europe  to  de- 
preciate his  character,  &c.  But  as  Shakespeare  says, 'Trifles  light  as 
air,  &c.,'  I  am  persuaded,  however,  that  he  means  well  for  his  country,  is 
always  an  honest  man,  often  a  wise  one,  but  sometimes,  in  some  things, 


TJTE    NORTHEASTERN     FISHERIES. 


29 


Under  the  influence  of  M.  Gerard  and  >I.  de  la  Luzerne,  the 
French  minister  to  the  United  States,  Congress  suddenly  took 
a  lower  tone,  and  on  the  15th  of  July,  1781,  gave  to  the  peace 
■commissioner&  the  humiliating  instructions  to  undertake  nothing 
in  the  negotiations   for  peace  without  the  knowledge  and  con- 
sent of  the  King  of  France  and  his  minister  and  "ultimately  to 
govern  ov.roelves  by  their  advise  and  opinion,  endeavoring   in 
our  whole  conduct  to  make  him  sensible  how  much  we  rely  on 
his  majesty's  influence  for  effectual  support."  ' 
■■  This  curious  resolution,  denounced  by  Madison  as  "a  sacrifice 
of  the  .national  dignity,"  has  never  been  satisfactorily  explained,' 
but  there  is  no  longer  any  doubt  as  to  the  moti,'e$  of  France  in 
securino-   its    passage.      It   was  at  Luzerne's  suggestion,  also, 
that  Congress  made  Jay,  Franklin,  Jefferson  and  Laurens  joint 
commissioners  with  Adams,  who  was  already  in  Europe.    Jef- 
ferson refused  to  serve  and  Laurens  was  captured  on  his  way 
t^  Europe    and   lodged    in    the  Tower  of  London.*     John 
Adams  was  much  disliked  by   the  diplomatists  of   France   and 
Spain,  not  only  because  of  his  fearless  independence  of  charac- 
ter but  also  because  of  the  tenacity  with  which  he  clung  to  the 
American  rij.^    '  to  the  fisheries.     Franklin  was  old  in  diplomacy 
and  well  knc         .o  all  the  statesmen  of  Europe. 

It  is  difficult  to  understand  the  motives  that  governed  the 
vanous  powers  during  the  negotiations  which  led  to  the  Treaty 
of  Paris.  But  there  is  no  doubt  on  one  point, — the  three 
European  powers  had  clear  and  distinct  views  of  the  dis- 
position to  be  made  of  the  Northeastern  fisheries  in  the  event  of 
the  colonies  gaining  their  independence.  The  position  of  Eng- 
land was  well  defined  by  the  announcement  of  the  Earl  of 


absolutelj  out  o£  his  senses."  Franklin  to  Livingston,  Dip.  Corresp. 
Rev.,  vol.  4,  p.  136. 

As  to  this  controversy,  see  Letter  from  Laurens,  Dip.  Corresp.  Rev., 
vol.  3,  p.  486.     Wells'  ^ife  of  Samuel  Adams,  vol.  3,  p.  149. 

For  an  interesting  sketch  of  the  famous  controversy  between  Adams 
and  Franklin  see  an  article  by  George  Bancro't  in  The  Century  for 
July,  1887,  entitled,  "An  Incident  in  the  Life  of  John  Adams." 

*  xJl^t   wGiftCS^.    A,vCV.,    VOi.    lOj  pp.  75»  <*^»   OCwTCi  ju  — :;; 
vol.  3,  p.  445. 

>  Jay's  The  Fishery  Dispute,  p.  Jf- 

*  See  Magazine  of  American.  History  for  July,  1887. 


,/  /- ..» 


30 


THE    UNITICD    STATES    AND 


Shelburne  to  Oswald,  that  "the  lim'ts  of  Canada  would  under 
no  circumstances  be  made  narrower  than  under  the  ParHament 
of  1763,  and  that  the  rh^'n  of  drying  fish  on  the  shores  of  New- 
foundland could  not  be  conceded  to  the  American  fishermen."  ' 
Spain  had  been  very  reluctant  to  join  France  in  the  war 
against  Great  Britain,  believing  "  it  by  so  doing  she  would  be 
encouraging  the  pnnciple  of  revolt  against  lawful  authority — 
a  pri.iciple  Spai*-  was  very  anxious  not  to  encourage  in 
her  owa  American  colonies.  But  France  overcame  Spanish 
reluctanv''  by  entering  into  an  agreement  that  in  the  event  of 
the  Britisi.  being  driven  from  Newfoundland,  the  fisheries 
.  should  be  shared  with  Spain  to  the  'ixclusion  of  the  United 
States.'  Vergennes  had  not  gone  into  the  war  for  the  sake  of 
American  independence  but  for  the  purpose  of  humiliating 
England.  This  had  now  been  effectually  accomplished  and 
he  desired  to  make  cuch  a  p°ace  as  would  preserve  the  in- 
fluence of  France  over  tne  new  nation.  He  w^ished  to  confine 
the  territory  of  the  United  States  to  a  narrow  strip  along  the 
coast  of  the  Atlantic.  These  limits  were  to  be  detailed  and 
"circumscribed  with  the  greatest  exactness  and  u..  ..  belliger- 
ent powers  (especially  Eng!  fid,  France  ^nd  Spain)  must  bind 
themselves  to  prevei..  any  transgression  of  them." ' 

This  plan  necessitated  the  rejection  of  the  American  vie  .-  of 
their  rights  in  the  fisheries,  which  had  been  the  subject  of  so 
much  confidential  correspondence  between  the  United  States 
and  His  Most  Christian  Majesty.  In  order  to  facilitate  the  de- 
sign of  Spain  it  was  necessary  to  adopt  the  argument  that  when 
the  Americans  became  released  from  the  duties  of  British  sub- 
jects, they  also  became  excluded  fmm  the  privileges  of  British 
subjects.  In  a  letter  to  Luzerne,  dated  at  Versailles,  September, 
1777,  Vergennes  wrote:  "It  should,  therefore,  be  well  estab- 
lished that  from  the  moment  when  the  colonists  published  their 


>  Fitzmaurice's  Life  of  Shelburne,  vol.  3,  p.  255. 

*  Bancroft's  Hist,  of  United  States,  vol.  10,  p.  190. 

*  Secret  Merr  jir  given  in  'ol.  3  of  Count  de  Circourt's  confidential 
correspondence  of  Vergennes,  pp.  34,  38.  In  vol.  3  of  Fitmaurice's 
Life  of  Shelburne,  page  170,  is  given  a  map  "of  North  America,  showing 
the  Boundaries  of  the  United  States,  Canada,  and  t*.e  British  possessions, 
according  to  thr  --oposal  of  the  Court  of  France  in  1783." 


THE    NORTHEASTEKN    I  i.  IIERIES. 


3« 


Declaration  of  Independence  they  have  ceased  to  nvn  a  share 
in  the  fisheries,  because  they  have  forfeited,  by  their  own  act, 
the  qualification  which  entitled  them  to  such  a  share;  that  con- 
sequently they  can  offer  to  the  court  of  London  neither  title  nor 
actual  possession.  From  this  comes  another  result;  viz.,  that 
the  Americans  having  no  right  to  the  fishery  we  can  give  them 
no  guarantee  on  that  head."  ' 

When  Jay  arrived  at  Paris,  in  September,  1782,  he  found  the 
negotiations  already  in  progress.  Upon  the  fall  of  Lord 
NortVs  ministry  in  March,  1782,  Franklin,  then  at  Passy,  lost 
no  time  in  communicating  with  his  old  friend.  Lord  Shelburne, 
who  was  to  be  the  new  home  secretary.  After  an  exchange  of 
placid  philosophic  compliments,  Shelburne  sent  Robert  Os- 
wald, a  Scotch  London  merchant  and  a  man  imbued  with  the 
economic  ideas  of  Adam  Smith,  to  Paris,  in  the  character  of  a 
confidential  representative  and  friend,  to  consult  w  ith  Franklin 
and  attempt  to  pave  the   way  for  formal  negotiations.^ 

It  is  not  my  purpose  to  follow  the  course  of  the  negotiations 
further  than  to  shov/  that  the  article  of  the  treaty  as  it  was 
finally  adooted  was  understood  by  the  British  commissioners  as 
an  ultimatum  and  was  accepted  in  a  spirit  of  reconciliation. 
Franklin  had  designated  three  conditions  as  necessary  to 
a  treaty:  Independence,  the  Boimdaries,  and  the  Ancient 
Fishing  Franchises.  The  first  the  English  government  was 
willing  to  acknowledge,  and  the  others  it  was  thought  could  be 
adjusted  without  much  difficulty. 

When  Jay  arrived  he  objected  to  Oswald's  Lommission, 
which  authorized  him  to  treat  with  "the  thirteen  colonies  or 
plantations."  Jay,  who  had  formerly  advocated  a  triple  alliance 
between  America,  France  and  Spain,  had  been  cured  by  a  resi- 

'  De  Circburt,  vol.  3,  pp.  J76,  J77.  'This  argument  conveniently  accords 
with  the  suggestion  which  closes  the  remarkable  memoir  on  the  princi- 
pal object  of  negotiatidi  .  for  peace,  given  bv  M.  do  Circourt  (III,  2%  3S) 
from  the  French  archives,  that  it  would  lie  for  the  intcrcs'  of  England  to 
have  the  French  as  companions  at  Ncwfoundin  nd,  rather  than  the  Amer- 
icans, and  agrees  with  the  strong  opinion  presented  to  I.onls  Shelburne 


tiiu  vji  ail i iiiAt 


txcviic^ai,    uui  nil. 


September,  178^,  against  our  right  to  the   tiiheries."     Jay's  The  F"t»hcry 
Dispute,  pp.  27,  i8;  Fif/maurlce'»  Life  of  Shilluirne,  vol.  3,  p.  i63. 
'  Sir  G.  C.  Lewis's  Adminli'trations  of  Great  Britain,  p.  8i. 


32 


THE    UNITED    STATES    AND 


dence    at  Madrid   and    now    believed   that  both   nations  %vere 
merely  attempting  to  use  American   pretentions  for  their  own 
advantage.     It  was  the  policy  of  England  to  detach  the  United 
States  from  France  and  negotiate  a  separate  treaty  with  each, 
and  Jay  assisted  in  bringing  this  about.     Vergenr.es  informed 
the  British  minister  Jr.it  the  commission  was  satisfactory  and 
used  all  his  influence  to  induce  the  Americans  to  proceed  with 
the  negotiations,  arguing  that  to  acknowledge  the  independence 
of  the  colonies  in  advance  of  the  treaty  would  be  putting  the 
effect  before  the  cause.     Franklin,  through  his  earnest  desire 
that  the  negotiations  should  proceed  as  rapidly  as  possible  and 
influenced    by    his     confidence    in     Vergennes,    was     willing 
to  accept  the  commission;  but  Jay  refused  to  treat,  except  on  a 
basis  of  sovereign  equality,  thus  delaying  matters  for  six  weeks. 
While  the  negotiations  were  in  progress,  the  French  Court 
sent  M.  de  Rayneval  on  a  secret  mission  to  England  to  try  and 
engage  that  power  to  support  the  French  and  Spanish  scheme 
for  the  division  of  the  fisheries  and  the  limitation  of  the  territory 
of  the  United  States  to  a  narrow  strip  along  the  Atlantic  coast. 
In  order    to    counteract    the     influence    of    M.  de  Rayneval, 
Jay    sent     Benjaman     Vaughn    to    London'    and    his    mission 
proved  so  successful  that  the  scheme  of  France  by  which  she 
hoped  to  cramp  the  future  of  the  United  States  by  surrounding  it 
with  an  impenetrable  cordon  of  European  influence,  and  for  the 
accomplishment  of  which  her  ablest  diplomatists  were  engaged 
at    Paris,    Madrid,  Philadelphia    and    London,  was  completely 
frustrated.      Great   Britain  adopted  the  view  of  the  American 
Commissioners  with  the  full  knowledge  and  understanding  that 
no  treaty   could   be  made   without  the  recognition  of  the  equal 
rights  of  the  citizens  of  the  United  States  in  the  northeastern 
fisheries. 

Vaughn  submitted  to  Lord  Shelburne  a  paper  containing 
a  full  discussion  of  the  fishery  question' and  stating  in  conclu- 
sion "that  it  certainly  could  nut  be  wise  in  Great  Biitiiin,  what- 
ever II  might  be  in  other  nations,  thus  to  sow  the  seeds  of  future 

■  !7 ^   •,.!■   ;   ,~,f  i'..'.^  ;r-.l=i'..-.r!   ir»   lay   to   Livinsiston;    Nov.    17. 

178a;  Dip.  Correnp.  Rev.,  vol.8,  pp.  ll%  161.  i('S'  •'O^;  note  by  Sparks  on 
the  Aim»  of  the  French  Court,  Uip.  Corresp.  Rev.,  vol.  b,  p.  io8. 

'  Dip.  Corresp.  Rev.,  vol.  8,  pp.  165,  iWi. 


THE    NORTHEASTERN'    FISIiLIUES. 


33 


wars  in  the  very  treaty  of  peace,  or  to  lay  in  it  the  foundation 
of  such  distrust  and  jealousies  as  on  the  one  hand  would  forever 
prevent  confidence  and  real  friendship,  and  on  the  other  nat- 
urally lead  us  to  strengthen  our  security  by  intimate  and  perma- 
nent alliances  with  other  nations;  ♦  *  *  it  would  not  be  wise 
for  Great  Britain  to  think  of  dividing  the  fisheries  with  France 
ard  excluding  us,  because  we  could  not  make  peace  at  ouch  an 
expense,  and  because  such  an  attempt  would  irritate  ^imerica 
still  more;  would  perpetuate  her  resentment,  and  induce  her  to 
use  every  possible  means  of  retaliation,  and  by  imposing  the 
most  rigid  restraints  upon  commerce  and  Great  Britain." 

These  "considerations"  appear  to  have  decided  the  British 
ministry.  The  cabinet  adopted  the  American  view  and  Vaughn 
carried  back  to  Pari'^  a  i.ew  commission  for  Oswald.' 

While  the  ne!rotintinn<;  were  in  progress  an  event  occured  in 
America  which  had  an  important  effect  upon  their  future  course. 
Vergennes  was  corrcspdnJiug  with  his  representative  at  Phila- 
delphia and  characterizing  the  American  demands  as  preposter- 
ous. On  the  13th  of  March,  1782,  M.  Marbois,  who  had 
probably  been  instructed  to  promote  the  renunciati  )n  of  the 
fisheries,  wrote  to  Vergennes:  "But  Mr.  Samuel  Adams  is 
using  all  his  endeavors  to  raise  in  the  State  of  Massachusetts  a 
strong  opposition  to  peace,  if  the  Eastern  States  are  not  thereby 
admitted  to  the  fisheries,  and  in  particular  to  that  of  Newfound- 
land. Mr.  Adams  delights  in  trouble  and  difficulty,  and  prides 
himself  in  forming  an  opposition  against  the  govcrnn.ent  where- . 
of  he  himsci;  is  President.'  His  aims  and  intentions  are  to 
render  the  minority  of  consequence;  and  at  this  very  moment 
he  is  attacking  the  Constitution  of  Ma>Nachusetts,  although  it 
be  in  great  measure  his  own  work.  But  he  has  disliked  it 
since  the  people  have  slmwn  their  uniform  attachment  to  it.  It 
may  be  expected  that,  with  this  disposition,  no  measure  can 
meet  the  approbation  of  Mr.  Samuel  Adams;  and  if  the  States 


■Lord  Shelburne  wrote  to  O-^wald,  September  13,  178a:  "Having 
•aiu  ttiiii  June  cverjfthing  which  has  been  desired,  there  is  notiiing  tor 
me  to  trouble  vou  with,  except  to  add  thin:  We  have  put  the  greatest 
confidt-nce,  I  believe,  ever  placed  in  man  in  the  American  Comnu««ion- 
fr»."     I  it/rnaurice'*  Life  of  Shelburne,  vol.   i,  p.  2b-j. 

•  Mr.  Adams  was  Prehident  of  the  Massachusetts  Senate. 


34 


THE    UNITED    STATES    AND 


1  .;,•,>  to  the  fisheries,  and  be  certain  of  partaking 
*^t    '''urht    «     -     ".u,  intd^nc,  would  bo  directed  to. 
Mh;  conmfe. "f  Canada  and  Nova  Scotia;   bu.  he  could 
r.  have  used'    fitter  engine  than  the  fisheries  for  stirring  up 
Th    prions  of  the  Eastern  people,  by  renewing  the  quest.on 
vhich  hllain  dormant  during  his  two  years  absence  from  Bos- 
In      He  has  raised  the  expectations  of  the  people  to  an  ex- 
,„?„t  Ditch      The  public  prints  hold  forth  the  .mportance 
:;*f  fish     e'       The'reigning  toast  in  the  East  is. May  tne 
U„*d  States  ever  maintain  their  rights  to  the  fishenes.      I 
h^     ften  been  repeated  in  the  deliberations  of  «he  Geneva 
Court  .No   peace   without  the  fisher.es.'    However  clear  the 
nrinclple  may  be  in  this  matter,  it  would  be  useless  and  ev  n 
dL'rousrto  attempt  informing  the  people  through  the  publ.c 
la«rs      But  it  appears  to  me  possible  to  use  all  means  for  pre^ 
^^L  the  consequences  of  success  to  Mr.  Samuel  Adams  and 
r  X   andTtaUe  the  liberty  of  submitting  them  to  your 

'  ™:Tetrta;;t'cfdT'the  hands  of  the  American  Com- 
ml^^ner  by  the  English  Secret  Service  and  showed  conclu- 
3;  .he  object  of' the  French  Court.  The  Amertcans 
deteiined  to  negotiate  a  separate  treaty,  Oswald's  mstrucuons 
havirbeen  so  altered  as  to  allow  him  to  treat  w,th  them 
ol^ftely.  On  the  Jtb  of  October  Oswald  accepted  an 
ar^celwing  citi.enf  of  the  United  States  to  dry  thetr  catch 
Tthe  shores  of  Newfoundland,  Strachey  was  now  added  to 
°he  English  Commissior.,  the  government  beg.nnmg  to  fear 
Ihat  Oswald  was  becoming  too  liberal.     After  a  long  d,scuss,on 

letter  John  Adams  wrote  thirty  years  later.        1  oannoi  samuel 

of  M   Marbois  without  observing  that  his  Ph'.'''P-;f '"^^  .^;;,t  Jl 
Adams  is   a   jewel  in   the  crown  of  that  patnot  and  hero,  almo.t  a    bn 
itantL  hi.  exception  from   pardon   in   General  Gage's  proclamation    . 
Z  ZaL  Works,  vol.  t,  p.  673.  See  Samuel  Adan.'  coma.en  s  on  M. 

itarbois-  letter  in  WeUs.  Life  and  V  '^^  Se^^ ^  ':r:^^tZ  l^ls 
•Ln   lei      In  his  funeral   discourse,  Thacher  says.      n  wa» 

LVv!  ope'   r-c,p,e,  ..  the  Co.e  o.  -l-".^!."^!"^  ".Cri'^e 

^;'Z::;uuS:;^;'r:p-a;jr:p^ac;  ««.^on  pa;to„i,o. 

by  the  French  Ministry." 


THE    NORTHEASTERN    FISHERIES. 


.^5 


the  liberty  to  dry  and  cure  fish  on  the  coast  of  Newfoimdlaiul 
was  transferred  t>  the  uninhabited  coasts  of  Nova  '-cotia,  Labra- 
dor, and  the  Magdalen  Islands  as  long  as  they  remained  un- 
settled. The  English  Commissioners  objected  to  the  word 
"right"  in  this  connection  and  the  word  "liberty"  was  substi- 
tuted  for  it.' 

^  At  Franklin's  suggestion  the  article  was  made  to  include  the 
right  to  take  fish  on  the  Grand  Bank  and  all  other  banks  of 
Newfoundland,  and  also  in  the  Gulf  of  St.  Lawrence  and  all 
other  places  in  the  sea  "where  the  inhabitants  of  Both  countries 
used  at  any  time  heretofore  to  fish." 

At  this  point,  the   negotiations  came  to  a  standstill  on  the 
question  of  indemnification  of  the  loyalists.     As  the    French 
Court  was  known  to  favor  the  English  claims,  a  new  instrument 
was  drawn  and  Fitzherbert  was  added  to  the  Englis!    Commis- 
sion in  the  hope  of  bringing  French  pressure  to  bear.     On  the 
same  day  Vergennes  wrote  that  France  would  no  more  prolong 
the  war  to  support  the  American  claims  to  the  fisheries  than 
would  the  Americans  to  gain  Gibraltar  for  Spain.     George  III 
urged  Shelburne  to  propose  to  Louis  XVI  the  denial  of  the 
fisheries  to  the  Americans.'     But  before  this  suggestion  could 
be  acted  upon  the  commission  met  and  Strachey  explained  the 
English  concession,  relative  to  the  fisheries  and  concluded   that 
the  question  of  indemnification  alone  stood  in  the  way  of  peace. 
On  the  29th  of  November  the  Commission  met  at  Mr.  Jay's 
rooms. 

The  following  extract  from  Mr.  Adams'  diary  shows  what 
was  said  and  done  about  the  fisheries  at  this  meeting  and  throws 
a  flood  of  light  on  the  intention  and  understanding  of  the  par- 
bes:  "29th,  Friday,- Met  Mr.  Fitzherbert,  Mr.  Oswald,  Mr. 
Frankhn,  M-.  Jay,  Mr.  Laurens  and  Mr.  Strachey  at  Mr.  Jay's 
Hotel  d'  Orleans,  and  spent  the  whole  day  in  discussions  about 
the  fisheries  and  the  Tories.  I  proposed  a  new  article  concern- 
ing the  fishery;  ,t  was  discussed  and  turned  in  every  light, and 
muU.tudes  of  amendments  proposed  on  each  side;  and  at  last 
the  article  drawn  as  it  was  finally  agreed  to. 

'  Works  of  John  Adams,  vol.  ^,  p.  335 
»  I.ham's  The  Fishery  Question,  p.  i^. 


36 


THE    UNITED    STATES    AND 


"The  Other  English  gentlemen  being  withdrawn  upon  some 
occasion,  I  asked  Mr.  Oswald  if  he  could  consent  to  leave  out 
the  limitation  of  three  leagues  from   all  their  shores  and  the 
fifteen  from  those  of  Louisbourg.     He  said  in  his  own  opinion 
he  was  for  it;   but  his  instructions  were  such  that  he  could  not 
do  it.     I  perceived  by  this  and  by  several  incidents  and  little 
circumstances  before,  which  I  had  remarked  to  my  colleagues, 
who  were  much  of  the  same  opinion,  that  Mr.  Oswald  had  c 
instruction  not  to  settle  the  articles  of  the  fishery  and  refugees 
without  the  concurrence  of  Mr,  Fitzherbert  and  Mr.  Strachey. 
Upon  the  return  of  the  other  gentlemen,  Mr.  Strachey  proposed 
to  leave  out  the  word   'right'  of  fishing  and  make  it 'liberty.' 
Mr.  Fitzherbert  said  the  word  'right'  was  an  obnoxious-   ex- 
pression.    Upon  this  I  rose  up  and  said:  'Gentlemen,  is  tnere 
or  can  there  be  a  clearer  right?     In  former  treaties — that  of 
Utrecht  and  that  of  Paris — France  and  England  have  claimed 
the  right  and  used  the  word.     When  God  Almighty  made  the 
banks  of  Newfoundland,  at  three  hundred  leagues  distant  from 
the  people  of  America,  and  at  six  hundred  leagues  distant  from 
those  of  France  and  England,  did  He  not' give  us  as  good  a  right 
to  the  former  as  to  the  latter?     If  Heaven,  at  the  creation, gave  a 
right,  it  is  ours  at  least  as  much  as  yours.    If  occupation,  use  and 
possession  give  a  right,  we  have  it  as  clearly  as  you.     If  war 
and  blood  and  treasure  give  a  right,  ours  is  as  good  as  yours. 
We  have  been  continuously  fighting  in  Canada,  Cape  Breton, 
and  Nova  Scotia  for  the  defense  of  this  fishery,  and  have  ex- 
pended beyond  all  proportion  more  than  you.    If  then,  the  right 
cannot  be  denied,  why  should  it  not  be  acknov  .edged  and  put 
out  of  dispute.     Why  should  we  leave  room  for  illiterate  fisher 
men  to  wrangle  and  chicane?' 

"Mr.  Fitzherbert  said: 

'  The  argument  is  in  your  favor.  I  mi.st  confess  your  rea- 
sons appear  to  be  good;  but  Mr.  Oswald's  instructions  were 
such  that  he  did  not  see  how  he  could  agree  with  us.'  «  ♦  * 
After  hearing  all  this,  Mr.  Fitzherbert,  Mr.  Oswald  and  Mr. 
Strachey  retired  for  some  time,  and  returning,  Mr.  Fitzherbert 
said  that,  upon  consulting  together  and  weiehine  everything  as 
maturely  as  possible,  Mr.  Strachey  and  himself  had  determined 
to  advisq  Mr.  Oswald  to  strike  with  us  accordine  to  the  terms 


<;-r 


THE    NORTHEASTERN-    FISHERIES. 


37 


wfc  had  proposed  as  our  ultimatum  respecting  the  fishery  and 
the,  loyalists.  Accordingly,  we  all  sat  down  and  read  over  t^-x 
whole  treaty  and  corrected  it,  and  agreed  to  meet  to-morrow  at 
Mr.  Oswald's  house  to  sign  and  seal  the  treaties,  w'  -fh  the  sec- 
retaries would  copy  fair  in  the  meantime. 

"  I  forgot  to  mention  that  when  we  were  upon  t'- 1  hshery  and 
Mr.  Strachey  and  Mr.  Fitzherbert  were  urgiiig  us  to  leave  out 
the  \  -d  'right'  and  substitute  'liberty,'  ".  .old  then,  a  last,  in 
answer  to  their  proposal  to  agree  upon  all  other  articles  and 
/e  that  of  the  fishery  to  be  adjuste  I  in  tnc  definitive  treaty, 
I  never  could  put  my  hand  to  any  articles  vithout  satisfaction 
about  the  fishery;  that  Congress  had,  thre°  or  four  years  ao-o, 
when  they  did  ^e  the  honor  to  give  me  a  commission  co  make 
a  Treaty  of  C^  nerce  with  Great  Britain,  given  me  a  positive 
instruction  not  to  make  any  >ach  treaty  without  an  article  in 
the  Treaty  of  Peace  acknowledging  a  right  to  the  fishery;  that  I 
was  Happy  that  Mr.  Liurens  was  now  present,  w!  o,  I  believeed, 
was  in  Congress  at  the  time  and  must  remember  it.  Mr. 
Laurens  upon  this  ^aid,  with  great  firmness  that  he  wis  in  the 
same  case,  and  could  never  give  his  voice  for  any  artic.es  with- 
out this.  Mr.  Jay  spoke  up  and  sai'd  it  could  not  be  a  peace,  it 
would  be  only  an  insidious  truce  without  it."  ' 

Thus  the  entire  article  was  made  a  condition  of  peace,  and  it 
was  so  understood  by  the  British  Cornmissiorers.  Mr.  Strachey 
wrote  to  Mr.  Towns"  u  Novembe-  .-'.o,  "The  article  of  the 
fishery  has  been  particularly  diffic  to  settle  as  we  thought 
the  instructions  were  rather  limite  I.  It  is,  however,  beyond  a 
doubt  that  there,  could  have  bten  no  treaty  at  all  if  we  had  not 
adofted  the  article  as  i!  now  stands." 

On  November  29,  17S-.  Mr.  Oswald  wrote  to  Lord  Shel- 
bume,  "A  few  hours  age  ae  thought  it  impossible  that  any 
treaty, could  be  made."  A.nd  to  Mr.  Townsend  the  following 
day  he  wrote,  '  If  w*  had  not  given  way  in  the  article  of  the 
fishery  we  should  have  had  no  treaty  at  all,  Mr.  Adams  ha'.ing 
declared  that  he  would  never  put  his  hand  to  any  treaty  if  the 
restraints  regardiror  the  three  leagues  and  fifteen  leagues  were 


not  disnensed  witii. 


'  Works  of  John  Adams,  vol.  3,  pp.  333-335. 


38 


THE    LNITED    STATES    AND 


privilege  of  diving  fi^h  on  the  unsettled  parts  of  Newfouiul- 
land."  And  Strachey  wrote  to  Xepcan,  "If  this  is  not  as  good 
a  peace  as  was  expected,  I  am  confident  it  was  the  best  that 
could  have  been  made.  Now,  are  we  to  be  hanged  or  applauded 
for  thus  rescuing  England  from  the  American  war?"' 

As   to    the    contemporaneous  interpretation  of  the  treaty,  I 
quote  from  a  pamphlet  by  J.  Q.  Adams,  published  in   1822." 

"  That  this  was  the  understanding  of  the  article  by  the  Brit- 
ish Government  as  well  as  by  the  American  negotiators  is  ap- 
parent to  demonstration  by  the  debates  in  Parliament  upon  the 
preliminary  articles.     It  was  made,  in  both  houses,  one  of  ihe 
great    objections    to  the  treaty.     In  the  House  of  Commons, 
Lord  North     •     ♦     •     said  '  By  the  third  article  we  have,  in 
our   spirit    of    reciprocity,   given  the  Americans  an  unlimited 
right  to  take  fish  of  every  kind  on  the  Great  Bank  and  on  all  the 
other   banks    of  Newfoundland.     But  this  was  not  sufficient. 
We  have  also  given  them  the  right  of  fishing  in  the  Gulf  of 
St.  Lawrence,  and  at  all  other  plac  js  in  the  sea  where  they 
have  heretofore  enjoyed,  through  us,  the  privilege  of  fishing. 
They   have,  lik -wise,  the  power  of  even  partaking  of  the  fish- 
ery which  we  still   retain.      We  have  not  been  content    with 
resigning    what  we  possessed,  but  even  share  what  we  have 
left."      •      *      ♦      In    this    sp^^ech    the    whole    article    is  con- 
sidered as  an  improvident  concession  of   British  property;  nor 
is  there  suggested   the  slightest  distinction  in  the  nature  of  the 
grant  between  th<    nature  of  :  he  right  of  fishing  on  the  banks 
and  the  liberty  of  the  fishery  on  the  coasts.     Still  more  explicit 
are  the  words  of  Lord  Loughborough  in  the   House  of   Peeis. 
♦The  fishery,'  says  he  'on  the  shores  retained  by  'Sri'ain  is,  in 
the  next  article,  not  ceded  but  recognized  as  a  right  inherent  in 
the  Americans,  which,  though  no  longer  British  subjects,  they 
are  to  continue  to  enjoy  unmoieste,\  no  right,  on  the  other  hand, 
being   reserved  to  British  subjects  to  approach  their  shores,  for 
the  purpose  of  fishing,  in  this  reciprocal  treaty." 

The  American  Commissioners  had  determined  not  to  be  used  . 


"-"-     -"-"--:-    -c»   r  :;•... .;ur:i.v,  :;  1  ;:v   vyt  DriciDui  iic    vui.  iii,  |i]>.    joi 

303       For  the   answer  to    Stracl"  y's  que>tion,    nee    F'inkc'*  ••  Results  of 
Cornwallis"  Surrender,"  Allaniit;  Mo    thl^-,  Jan.,  i836. 
*  The  Fi»herie<<  tiid  tl  .-  Mis«i,sip[)i,  pjv  189,  lyo. 


THE    -NORTHEASTERN-    FISHERIES. 


39 


/^3 


to  further  the  ambitious  projects  of  the  European  powers  and 
they  succeeded  in  guarding;  the  interests  of  their  country  at 
every  po.nt.  Their  attitrid.  is  illustrated  bv  an  incident  which 
occured  during  the  negotiations.  The  American  CommivM.,.- 
ers  refused  to  continue  the  war  for  the  furtherance  of  French 
and  Spanish  objects.  "  You  are  afraid  "  said  Oswald  to  Adams 
"Of  being  made  tools  of  by  the  powers  of  Europe."  "Indeed 
I  am,"  replied  Adams.  «  What  powers  r  asked  Oswald  "All 
of  them,"  bluntly  replied  Adams.' 

By  maintaining  this  position  throughout,  they  succeeded  in 
preserving  their  Independence,  their  Boundaries  and  their  An 
cient  Fishing  Rights 

The  Treaty  was  signed  September  3,  17S3,  and  Article  III  was 
as  follows :  "  It  is  agreed  that  the  people  of  the  United  States  shall 
continue  to  enjoy  unmolested  the  right  to  take  fish  of  everv  kind 
on  the  Grand  Bank  and  on  all  the  other  banks  of  Newfoundland 
also  in  the  Gulph  of  St.  Lawrence,  and  at  all  other  places t 
the  .ea  where  the  inhabitants  of  both  countries  used  at  any  time 
heretofore  to  fish  And  also  that  the  inhabitants  of  the  United 
States  shal    have  liberty  to  take  fish  of  every  kind  on  such  part 

lilTTT  ^^^"^°-^^-^   -   British   fishermen   shall   use, 
(but  not  to  dry  or  cure  the  same  on  that  island  ) ;  and  aLo  on  the 
coasts,  t^ays,  and  creeks,  and  all  other  of  His  British  Majesty's 
dominions  in  America;  and  that  the  American  fishermen  sh.U 
have  liberty  to  dry  ai.d  cure  fish  in  any  of  the  unsettled  bays, 
harbours,  and  creeks  of  Nova  Scotia,  Magdalen  Islands,  and 
Labrador  so  long  as  the  same  shall  remain  unsettled;  but  so 
soon  as  the  same,  or  either  of  them,  shall  be  settled,  it  shall  not 
be    awful  for  the  said   fishermen   to  dry   or  cure   fish   at  such 
settlement  without  a  previous  agreement  for  that  pupo     with 
^^^^^nh^ha^s,  proprietors,  or  possessors  of  the  ground." ' 

•  Flumaurke'8  Life  of  Shclburne,  vol.  3,  p  300  ~~  " 

*  Treaties  and  Convenfion    h^.i  i-  ,       ' 

rP-  309.  3,4.  '•■'^"  ^  ""*-'^  =»'*"=*  «"^'d  other  Power,. 


4° 


THE    UNITED    slATES    AND 


THE   FISHERIES    AT   THE   CLOSE   OF  THE 
REVOLUTION. 

At  the  close  of  the  war  the  fishery  industry  was  prostrate, 
and  the  memberb  of  Congress   from   Eastern   States  earnestly 
advocated  the  adoption  of  a  system  which  would  place  it  once 
more  upon  a  paying  basis.     The  question  was  much  discussed 
durino-  the  session  of  the  first  Congress.     In  the  course  of  the 
debate  on  the  bill  to  levy  "duties  on  imports,"  Fisher  Ames,  of 
Massachusetts,  said:  "We  exchange  for  molasses  those  fish  that 
it  is  impossible  to  dispose  of  anywhere  else;  we  have  no  market 
within  our  reach  but  the  islands  from  whence  w  e  get  molasses  in 
return,  which  again   we  manufacture  into  rum.     It  is  scarcely 
possible  to  maintain  our  fisheries   with   advantage,  if  the  com- 
merce for  summer  fish  is  injured,  which  I  conceive  it  would  be 
very  materially,  if  a  high  duty  is  imposed  upon  this  article;  nay, 
it    would  carry  devastation  throuj^hout  all  the  New  England 
States;  it  would  ultimately  affect  all  throughout  the  Union.     * 
*     ♦     When  gentlemen  contemplate  tlie  fishery,  they  admit  its 
importance,  and  the  necessity  we  are  under  of  encouraging  and 
protecting  it,  especially  if  they  consider  its  declining  situation; 
that  it  is  excluded  from  those  advantages  w  ich  it   formerly 
obtained  in  British  ports,  and  participates  but  in  a  small  degree 
of  the  benefits  arising  from  our  European  allies,  whose  mar- 
kets are  visited  under  severe  restrictions;  yet,  with  all    these 
discouragements,  it  maintains  an  extent  which  entitles  it  to  the 
fostering  carf' of  government.     •     *     ♦     In  short,  unless  some 
extraordinary   measures  .^re  taken  to  support  our  fisheries,  I  do 
not  see  what  is  to   prevent   their   inevitable   ruin.     It  is  a  fact 
that    near    one-third    of   our  fishermen  are  taken  from    their 
profession — not  for  want  of  skill  and  al     'ies  in  the  art,  for 
here  they  take  the  rank  of  every  natiou  on  earth — but  from 
the  local,  chilling  policy  of  foreign   nations,  who  shut   us  out 
from  the  avenues  to  market.     If,  instead  of  projection  from  the 
government,  we  extend  to  them  oppression,  I  shudder  for  the 


consequences. 


4.1 „....»., 


I    contend    they    are   poor;     they 


'  See  Annals  of  Congress,  vol.  i,  pp.  291,  294,  334,  330,  335. 


THE    NORTHEASTERN     FISHERIES. 

In  17S9  Congress  came  to  the  assistance  of  the  fishermen  n„J 
.nau,„ra.ed  the  s.sten,  of  bounties,  which  cont  n„^  I  ^  ' 
the  recprocy  treaty  of  ,S54.'  This  act  allowed  a  bounty  of 
five  cents  per  quintal  on  dried,  and  the  same  sum  perrarrclon 
p.ckled  fish  exported,  and  imposed  a  duty  of  fifty  cents  ner 
quintal  and  seyenty.fiye  cents  per  barrel  L  for  gn  foh  fl 
ported  mto  the  United  States.  ^  "' 

In  his  speech  to  Congress,  in  ,790,  Washington  suted  that 
"our  fishenes  and  the  transportation  of  our  own  produce  offer  „ 

oC"  re:s""'°;/rtr'""'  ""-"v-  '''•■"'  '-p-^'^  -  °" 

Plied     «Th7        ■  7"  '°  "'''  "'''''"•  'he  Senate  re: 

plied     "The  naygation  and  the  fisheries  of  the  United  St,,!. 

^::  Cuh  ^■■'"'"■-r"  "  '-P-"  "imposition  t" 
hem  by  all  the  means  which  shall  appear  to  us  consistent  ^,1 
.he,r  natural  progress  and  permanent  prosperity."  "■ 

gi:d""Tryr:d  co::ri  ^''  t-  '"-""-'^y 

.e^s  for  their  aidf  "If!  pZr  r^er^frr  r^ 
tthe  hi"'"':-  "'  ""'"«'  ■"  '""  "-'»  from  tha   town 

only  $.;3.      The  afetl'e  a"„„re  p  n'^  wertllfi"  L''" 

This  petition  with  o  he"'o  ?"'T     T'  ^°'+'°  """"'• 
to  JeSeLn,  then  Secretarv      ,T        ''^""'"'  ""^  «'"'-<! 
.79..  submitted  are"    '?'  '"'  " ''°' °"   '""'"'">•    '''. 

i»  ■    In  this  report  T  °ff  ^^""'  °"  ""'  ''"'  "'  'h'  «»her. 

and  ..isadvantr  oirx:: -cT  fiir::"!'  ""r-^" 

vantages  were:  ^'^n  n.nermen.     Among  the  ad- 

I.     The  neighborhood  of  the  P-reit  fi«h...- 
our  fishermen  to  brin^  h  fisheries;  which  permits 

wives  and  children     ^  """"■  '^'^   ^'^  ^^  -^'^'^  ^y  their 


'  Benton's  "Thirt 


V  V. 


Uefferson'«  Works,  vol.  7  "p  "^s  ""ex  V^' 
printed  in  H.  Min.  Doc   Nn  ^Z:/.'^^'       '    ^°"-  '^'  ^^°"K  •  3d 


Doc.No.34,4JdCong.,  jndSes,. 


Sest., 


re- 


THE    UNITED    STATES    AND 


2  The  shore  fisheries  so  near  at  hand  as  to  enable  the  ves- 
sels* to  run  into  port  in  a  storm,  and  so  lessen  the  risk,  for  which 
distant  nations  must  pay  insurance. 

The  winter  fisheries,  which, like  household  manufactures, 
employ  portions  of  time  which  would  otherwise  be  useless. 

A  The  smallness  of  the  vessels,  which  with  the  shortness 
of  the  voyage,  enables  us  to  employ,  and    which,  consequently 

requires  but  a  small  capital. 

S  The  cheapness  of  our  vessels,  which  do  not  cost  above 
the  half  of  the  Baltic  fir  vessels,  computing  price   and  dur-.tion. 

6.  Their  excellence  as  sea  boats,  which  decreases  the  risk 
and  quickens  the  returns. 

7.  The  superiority  of  our  mariners  in  skill,  activity,  enter- 
prise, sobriety,  and  order. 

8      The  cheapness  of  provisions. 

9.  The  cheapness  of  casks,  which  of  itself,  was  said  to  be 
equal  to  an  extra  profit  of  fifteen  per  cent. 

To  balance  these,  were  the  disadvantages  over  which  Con- 
gress had  no  control: 

1.  The  loss  of  the  Mediterranean  markets. 

2.  Exclusion  from  the  markets  of  other  nations. 

3.  High  duties. 

4.  Bounties  granted  rival  fishermen. 

•     Among  the  disadvantages  for  which  it  was  thought  Congress 

could  find  a  remedy  were :  j  •       u 

1.  Tonnage  and  naval  duties  on  the  vessels  employed  m  the 

fishery. 

2.  Import  duties  on  salt. 

3.  Import  duties  on  tea,  rum,  sugar,  molasses,  hooks,  lines, 
leads,  duck,  cordage,  cables,  iron,  hemp,  and  twine,  coarse  wool- 
lens and  the  poll  tax  levied  on  the  persons  of  the  fishermen. 

It  was  therefore  recommended  that  there  be  a  remission  of 
duties  on  such  articles  as  were  used  by  the  fishermen,  and  that  a 
retaliatory  duty  be  levied  on  foreign  oils  coming  to  American 

markets.  .  _  . 

The  following  year  the  bounty  on  dried  and  pickicd  iisn  war, 
abolished  and  in  lieu  thereof  a  specific  allowance  was  made  to 
the  vessels  engaged  in  the  cod-fishery.  Boats  of  between  five  and 
twenty  tons  were  allowed  one  dollar  a  ton  per  annum;  those 


THE    NORTHEASTERX    FISHERIES. 


43 


between  twenty  and  thirty  tons  were  allowed  two  dollars  and 
fifty  cents  a  ton  per  annum,  but  no  vessel  could  receive  more 
than  one  hundred  seventy  dollars  in  one  year.  By  a  sub- 
sequent act  of  the  same  year  these  rates  were  increased  one-fifth. 
The^e  acts  were  opposed  in  Congress  by  Giles  of  Virginia  and 
other;,  on  the  ground  of  unconstitutionality.  In  1799?  the  law 
was  again  revised  so  as  to  allows  vessels  of  the  smallest  class  to 
draw  one  dollar  sixty  cents  per  ton,  and  vessels  of  from 
twenty  tons  upwards  two  dollars  and  fifty  cents  per  ton  for  each 
year,  while  the  maximum  was  increased  to  two  hundred  seventy- 
two  dollars  a  year.  In  iSoo  this  was  again  revised  in  matters 
of  detail.  , 

In  1793  an  act  was  passed  authorizing  the  collector  of  cus- 
toms to  grant  vessels  duly  licensed  permits  "to  touch  and  trade 
at  anj  foreign  port  or  place,"  and  under  such  papers  to  procure 
salt  and  other  articles  necessary  for  their  outfits  without  being 
subject  to  duty. 

The  British  government  endeavored  to  induce  the  disaffected 
fishermen  to  emigrate  to  Nova  Scotia.  A  vessel  was  sent  from 
Halifax  to  Nantucket  to  convey  the  people  who  proposed  to 
move,  but  just  as  two  families  had  gone  aboard,  a  letter  was  re- 
ceived from  Lafayette  assuring  them  that  their  friends  in  France 
would  do  something  for  them.  The  embarkation  ceased  at  once 
and  the  vessel  was  obliged  to  return  to  Halifax  with  its  cargo 
of  two  families.  France  was  unwilling  to  see  from  four  to  five 
thousand  of  the  best  seamen  in  the  world  transfer  their  allegiance 
to  England,  and  invited  them  to  come  to  Durkirk.  But  only 
nine  families  availed  themselves  of  the  invitation. 


44 


THE    UNITED    STATES    AND 


DIFFE^.    ST  CONSTRUCTIONS   OF  THE 
T^'.EATY   OF  1783. 

It  soon  became  apparent  that  the        o  governments  differed 
in  their  construction  of  the  third  article  of  the  Treaiy  of  17S3. 
Great  Britain  took  the  position  that  the  treaty  was  not  a  unity  ?  >J 
that  while  the  right  to  the  deep  sea  fishing  was  to  be  reonrdcd    ~- 
permanent,  certain  liberties  of  fishing  had  been  granted  by  the 
treaty  and  consequently  were  liable  to  be  terminated  by  war. 
With   the  close  of  the  war  of   18 12  this  became   a    question 
of  vital  importance.     The  United  States  claimed  that  the  treaty 
was  a  unity,  that  the  right  to  take  fish  on  the  coast   jf  New- 
foundland under  the  limitation  of  not  drying  or  curing  th .  same 
on    that  island,  and  also  on  the  other  coasts,  bays  and  creeks, 
together  with  the  limited  right  of  drying  and  curing  fish  on  the 
coasts  of  Nova  Scotia,  Li»brador  and  the  Magdalen  Islands,  was 
simply  recognized,  not  created  by  the  treaty  of  17S3;  that  ic 
merely  defined  the  boundaries  between  the  twj  countries  and 
the  rights  and  duties  belonging  to  each;  that  't  was  analogous 
to  a  treaty  of  partition;*  that  the  treaty  being  one  which  recog- 
nized independence  and  defined  boundaries   belonged    to   t-hat 
class  wl.'ch  are  permt.pent,  and  not  affe-ted  b>    ,.ny  '-i-v"  sus- 
pension of  friendly  relations  betweev,  the  ^.aticbi  and  conse- 
quently that  the  article  relating  to  ihe  fisheries  was  no  more 
affected  by  war  than  was  that  part  which  acknowledged  inde- 
pendence and  estrl  'ished  bounda'ies. 

In  a  tamuus  dispatch"  signed  by  Earl  Bathurst,  but  understood 
to  have  been  written  by  Mr.  Canning,  it  is  broadly  static  that 
Great  Britain  knows  "  no  exception  to  the  rule  that  all  treaties 
are  put  an  end  to  by  a  subsequent  wa    between  the  parties." 

It  is  easy  ^o  show  that  this  statement  is  too  broad. 

During  the  agitation  of  the  fishery  question  in  November 

>  Lyman's  Dij'lomacy  of  the  U.  S.,  vol.  t,  p. ;  17;  Cushing's  Th-i  Treaty 
^£  ".'.  _u:.-..Tt.--.    -    -!~.fi 

»  State  Papers,  For.  Rel.,  (Pol.  Ed.)  vol.  4,  p.  353.  Earl  Bati.urst  to  J.Q. 
Adams,  Oct.  30,  1815. 


THE    NORTHEAsIEKN    FISHKKIES. 


45 


iSiS,  President  Monroe  consulted  Senator  C.  A.  Rodney,'    and 
received  from  him  a  wiitten  opinion  from  v/hich  I  quote  a^  fol- 
lows:'   "When  the  treaty  of  Amiens,  in   iSo3,  between  Great 
Britain,  France,  Spain,  and   Holland,  was  under  discus.siou   in 
Parliamert,  it  was  objected  by  some  members  that  there  was  a 
culpable  omission  in  consequence  of  the  non-renewal  of  certain 
articles  in  former  treaties  or  conventions,  securing  to  Enjjland 
the  gum  trade  of  ihe  river  Senegal  and  the  right  to  cut  leg- 
wood  at  the  Bay  of  Honduras,  &c.      f"  answer  to  this  sugges- 
tion   in    the   House    of   Lords,  it  was  well  observed  by   Lord 
Auk'and  'thr.t   from   an  attentive  perusal  of  the  words  of  the 
publicists,  he  had  corrected  in  his  own  mind,  an  error,  still  pre- 
valent, that  all  treaties  between  nations  are  annulled  by  a  war, 
and  to  be  reinforced  must  be  specifically  renewed  on  the  return 
of  peace.     It  was  true  that  treaties  in  the  nature  of  compacts  or 
concessions,  the  en-joyment  of  which  has  been   inteirupted   by 
war,  are   thereby  rendered  null;  but  compacts  which  were  not 
impeded  by   the  course  and  effect  of   hostilities,    3uck   aj    ihe 
rights  of  a  fishery  on  ihe  coasts  of  either  of  the  powers,  the  stip- 
ulated right  of  cutting  logwood  in  a  particular  district  —  com- 
pacts of  this  nature  were  ntn  itfected  I'y  wrr.     *     ♦     *     It  had 
been  intimated  by  some  thar  iy  the  non-renewal  of  the  treaty 
of  1786,  our  right  to  cut  logwood  might  be  disputed;  but  those 
he    would    remind    of    the    principle    already   explained,    that 
treaties,  the  exercise  of  which   was   not  impeded  by  the  war, 
were  re-established  with  peace.     *     «     •     He  did  not  consider 
our  rights  in  India  or  Honduras  in  the  least  affected  by  tae  non- 
renewal of  certain  articles  in  former  treaties. 

"Lord  Ellenborough  (Chief  Justice  of  the  court  <-r  King's 
Bench)  'felt  surprised  that  the  non-rencwa'  of  treaties  should 
have  been  urg'.-d  as  a  serious  objection  to  the  definitive  treaty. 
•  •  ♦  •  He  was  astonished  to  hear  men  of  talents  argue 
that  the  public  huv  of  Europe  was  a  dead  letter  ')ocause  certain 
treaties  were  not  renewed.' 

"  Lord  Eldon,(then  and  at  present  the  high  (.''laiicellor  of  Eng- 
land, and  a  member  of  tho  cabinet)   'denied   that  the   rights  of 


*  Ex  Attornev  Gen'-ral   Roiiiuv   to   I'residcni    1  lonroc,   Nov.    3,    iSi8; 
Monroe  MSS  ,  Dcparimeiit  of  Sute. 


v^ 


46 


THE    UNITED    STATES    AND 


England  in  the  Ray  of  Honduras  or  the  river  Senegal  were  af- 
fectT-d  by  the  non-renewal  of  the  treaties." 

"  In  the  House  of  Commons,  in   reply  to  the  same  objection 
made  in  thellou^e  of  Lords,it  was  stated  by  Lord  Hawkesbury, 
the  present  Earl  of  Liverpool,  then  Secretary  of  State  for  the 
foreign  department  and  now  prime  minister  of  England,  which 
post  he  occupied  when  the  treaty  of  Ghent  was  concluded,  'that 
to  the  definitive  treaty  two  faults  had  been  imputed,of  omission 
and  commission.    Of  the  former,  the  chief  was  the  non-renewal 
of  certain  treaties  and  conventions.     He  observed  the   principle 
on  which    treaties    were  renewed  was  not  understood.      He  af- 
firmed that  the  separate  (jonvention  relating^' our   East   India 
t.ade,  and  relative  to  our    right  of  cutting  logwood  in  the   Bay 
of  Hondu  as,  has  been  altogether  misunderstood.     Our  sover- 
eignty  in   India  was   the   result  of  conquest,  not  established  in 
consequence  of  stipulations  with  France,  but  acknowledged   by 
her  as  the  foundation  of  them;  our  rights  in  the  Bay  of  Hon- 
duras remained  inviolate,the  privilege  of  cutting  logwood  being 
unquestionably   retained.     *     •     *     He  did   not  conceive    our 
rights  in  India  or  at  Honduras  were  affected  by  the  non-renewal 
of  certain  articles  in  former  treaties.' 

"It  is  remarked  in  the  A.mual  Register  that  Lord  Hawkes- 
bury's  speech  contained  the  ablest  defense  of  the  treaty.  The 
chancellor  of  the  exchequer,  Mr.  Addington,  the  present  Lord 
Sidmouth,  and  the  late  Mr.  Pitt  supported  the  same  principles  in 
the  course  of  the  debate.  I  presume  our  able  negotiators  at 
Ghent  entertained  the  same  opinions  when  they  signed  the  late 
treaty  of  peace. 

"It  may  be  recollected  that  during  the  Revolutionary  war, 
whp  'he  British  Parliament  was  passing  the  act  to  prohibit  thr 
colonies  from  using  the  fisheries,  some  members  urged  with 
great  force  and  eloquence,  'that  the  absurdity  of  the  bill  was 
equal  to  its  cruelty  and  injustice;  that  its  object  was  to  takeaway 
a  trade  from  the  colonies  which  all  who  understood  its  nature 
knew  they  could  not  transfer  to  tiiemsiUcs ;  that  Goil  anu  na- 
ture had  given  the  fisheries  to  New  antl  noi  Old  England."' 

>  Sec  Hansard's  Debates,  vol.  23,  p.  1147 

»  In  1765  Sir  James  Marriot,  contlrmitiK  an  opinion  j;ivcn  bv  Attorney 
Otrnrrai   t\vo«*i   ami  rSi»ii»,itui    vitiKi.ii    r-iiJr.ay    ;..    ly.Sj.   ucv:;:^u    viiat   i::c 


THK    NORTHEASTKRN    Fr-^i(KKIK>. 


47 


«*The  ar^umcr.  -     n  whicn  the  people  of  America  found  their 
claim  to  fish  on  tlic  bai.I^s  of  Newfoundland  ari«e,"  wrote  Mr. 
Livingston,'  "first,  fror-  their  having  once  formed  a  part  of  the 
British  Empire,  in  which  state  they  always  enjoyed,  as  fully  as 
the  people  of  Britain  themselves,  the  right  of  fishing  on  these 
banks.     They  have  shared  in  all  the  wars  for  the  extension  of 
that  right,  and  Britain  could  with  no  more  justice  have  excluded 
them  from    the  enjoyment  of  it  (even   supposing  that  one  na- 
tron could  possess  it   to  the  exclusion  of    another),  while  they 
formed  a  part  of  the  Empire,  than  they  amk\  exclude  the  peo- 
ple of  London  or  Bristol.     If  so,  the  only   inquiry  is,  How  have 
we  lost  this  right?     If  we  were  tenants  in  common  with   Great 
Britain  while  united  with  her,  we  still  continue  so,  un'   ^s  by 
our  own  act,  we  have  relinquished  our  title.     Had  we  parted 
with  mutual  consent  we  should  doub'^ess  have  made  partition 
of  our  common  rights  by  treaty.     But  the  oppressions  of  Great 
Britain  forced  us  to  a  separation   (which  must  be  admitted,  or 
we  have  no  right  to  be  independent);  and  it  cannot  certainly  be 
contended  that  those  oppressions  abridged  our  rights  or  gave 
new    ones  to    Britain.     Our    rights    then  are  not   invarnlated 
by  this  separation,  more  particularly   as  we  have  kept  up  uur 
claim  from  the  commencement  of  the  war,   and  assigned  the 
attempt    of  Great  Britain  to  e   elude  us  from   the  fisheries  as 
one  of  the  causes  of  our  recurring  to  arms."  ' 


fishery  clauses  of  Ihe  Treaty  of  Peace  and  Neutrality  concluiied  between 
England  and  France,  November  i6,  1686,  were  valid  notwithstanding 
a  subsequent  war.  Opinions  of  Eminent  Lawyers  on  Various  Points  of 
English  Jurisprudence,  chiefly  Concerning  the  Colonies,  Fisheries,  and 
Commerce  of  Great  Britain,  by  George  Chalmers;  vol.  2,  pp.  344-35S- 
For  the  effect  of  war  on  treaties  ,see  also,  Field's  International  Code; 
Wharton's  Int.  Law  Dig.  vol.  2,  chap,  vi,  sec.  135;  Blaine's  Twenty  Years 
of  Congress,  vol.  2,  p.  617;  .Society  vs.  Ne%v  Haven,  5  Curtis  (U.  S.),  492; 
Sutton  vs.  Sutton,  i  Rus.  ,i  M.,  663;  Phillimore's  Int.  Law,  vol.  3.  Pi'-  ^-^-O" 
679;  Wheaton's  Klem.  Int.  Law  (Lawrence),  pp.  3;,4-342. 

>  R.  R.  Livingston,  Secretary  of  State,  to  Franklin,  Jan.  7,  1782:  Frank- 
lin's Works  (Sparks'  Ed.),  vol.  9,  p.  135. 

Mn  the  case  of  Sutton  vs.  Sutton,  l  Rus.  \'  M..  675,  from  ul.iih  no  appeal 
was  taken,  Sir  J.  Leach,  Master  of  the  Rolls,  passed  upon  the  question  a» 
to  how  far  territorial  rights  given  by  the  treaty  of  1794  were  abrogated  by 
the  war  of  181 1.   In  thi^  decision,  rendered  in  1S30,  it  was  >aid:  "The  rela- 


iiuns  wiiici*  ii.iii  ^iin^i-»it  li  ni.I">*tc"i  v» 


>K.. 


formed  one  empire  led  to  the  introduction   of    the    ninth   section    of    the 


^ 


i 


48  "IHE    UNITED    STAT     S    AND 

In  his  somewhat  celebrated  pamphlet  on  The  Fisheries  and 
the  Mississippi,  John  Quincy  Adams  says:'  "As  a  possession  it 
was  to  be  held  by  the  people  of  the  United  States  as  it  had  been 
held  before.  It  was  not,  like  the  land  partitioned  out  by  the  same 
treaty,  a  corporeal  possession,  but,  in  the  technical  language  of 
the  English  law,  an  incorporeal  hereditament,  and  in  that  of  the 
civil  law  a  right  of  mere  faculty,  consisting  in  the  power  and 
liberty  of  exercising  a  trade,  the  places  in  which  it  is  exercised 
being  occupied  only  for  the  purposes  of  the  trade.  Now,  the 
right  or  liberty  to  enjoy  this  possession,  or  to  exercise  this  trade, 
could  no  more  be  affected  or  impaired  by  a  declaration  of  war 
than  the  right  to  the  territory  of  the  nation.  The  interruption 
to  the  exercise  of  it,  during  the  war,  could  no  more  affect  the  right 
or  liberty  than  the  occupation  by  the  enemy  could  affect  the  right 
to  that.  Tl'.e  right  to  territory  could  be  lost  only  by  abandon- 
ment or  renunciation  in  the  treaty  of  peace,  hy  agreement  to  a 
new  boundary  line,  or  by  acquiescence  in  the  occupation  of  the 
territory  by  the  enemy.  The  fishery  liberties  could  be  lost  only 
by  express  renunciation  of  them  in  treaty,  or  by  acquiescence, 
on  the  principle  that  they  were  forfeited,  which  would  have 
been  a  tacit  renunciation." 

"In  case  of  a  cession  of  territory,"  says  Mr.  Adams," 
"when  the  possession  of  it  has  been  delivered,  the  article  of  the 
treaty  is  no  longer  a  compact  between  the  parties,  nor  can  a  sub- 
sequent war  betv/cen  them  operate  in  any  manner  upon  it.  So 
of  all  articles,  the  purport  of  which  is  the  ackncivledgment  by 
one  party  of  a  pre-existing  right  belonging  to  another.  The 
engagement  of  the  acknowledging  party  is  consummated  by  the 
ratification  of  the  treaty.  It  is  no  longer  an  executory  contract, 
but  a  perfect  right  united  with  a  vested  possession,  is  thenceforth 
in  one  party,  and  the  acknowledgment  of  the  other  is  in  itsov/n 

treaty  of  1794,  and  made  it  highly  reasonable  that  the  subjects  of  the  two 
parts  of  the  divided  empire  should,  notwithstanding  the  separation,  be 
protected  in  the  mutual  enjovmcnt  of  their  '.aiidid  property;  and  the 
privileges  of  natives  being  reciprocally  given  not  only  to  the  actual  pos- 
sessors of  land  but  to  their  heirs  and  assigns,  it  is  a  reasonable  construc- 
tion that  it  was  the  intention  of  the  treaty  that  the  operation  of  the  treaty 

oPiOuii-i  lit-  pel  iiidiic:rL,  »*iiu  nui  iJCprriG  Upor,  ;»  r;;uIC  OI  pcULC. 

'  Page  iGi;  Lyman's  Diplom.icy  of  the  U.  S.,  vol.  I,  p.  117. 
'  The  Fisheries  ^nd  the  Mississippi,  p.  195. 


THE    NORTHEASTERN    FISHERIES. 


49 


nature  irrevocable.  As  a  bargain  the  article  is  extinct;  but  the 
right  of  the  party  in  whose  favor  it  was  made  is  complete,  and 
cannot  be  affected  by  a  subsequent  war.  A  grant  of  a  faculta- 
tive right  or  incorporeal  hereditament,  and  specifically  of  a  right 
of  fishery,  from  one  sovereign  to  another,  is  an  article  of  the 
same  description." ' 

'In  1823,  ex-President  John  Adams  wrote  to  William  Thomas: 
"The  inhabitants  of  the  United  States  had  a.-s  clear  a  right  to  every  branch 
of  the  fisheries,  and  to  cure  fish  on  land,  as  the  inhabitants  of  Canada  or 
Nova  Scotia.  *  *  *  the  citizens  of  Boston,  New  York,  or  Philadel- 
phia had  as  clear  a  right  to  these  fisheries,  and  to  cure  fish  on  land,  as  the 
inhabitants  of  London,  Liverpool,  Bristol,  Glasgow  or  Dublin;  fourthly 
that  the  third  article  was  demanded  as  an  ultimatum,  and  it  was  declared 
that  no  treaty  of  peace  should  be  made  without  that  article.  And  when 
the  British  ministers  found  that  peace  could  not  be  made  without  that 
article,  they  consented,  for  Britain  wanted  peace,  if  possible  more  than 
we  did;  fifthly,  we  asked  no  favor,  we  requested  no  grant,  and  would  ac- 
cept none."  Quoted  and  adopted  by  Mr.  Cass,  in  his  speech  on  the  Fish- 
cries  in  the  Senate,  August  3,  1852,  App.  Cong.  Globe,  1852. 

In  a  note  to  a  speech  delivered  by  Rufus  King  in  the  Senate,  April  3, 
1818,  and  afterwards  published  in  pamphlet  form,  it  is  said  that  the  fish- 
eries '-on  the  coasts  and  bays  of  the  provinces  conquered  in  America 
from  France  were  acquired  by  the  common  sword,  and  mingled  blood  of 
Americans  and  Englishmen — members  of  the  same  E.apire,  we,  with 
them,  had  j.  common  right  to  these  fisheries;  and,  in  the  division  of  the 
empire.  England  confirmed  our  title  without  conditioii  or  limitation;  a 
title  equally  irrevocable  with  those  of  our  boundaries  01  of  our  indepen- 
dence itself."     Annals  of  Congress,  181S,  p.  ^;iS. 

The  moment  the  United  States  became  a  sovereign  power  its  citizens 
were  entitled  to  the  rights  of  the  fisheries:  Mcllvaine,  vs.  Coxe,  4  Cranch 
(U.  S.i.  209:  Opinion,  Ex.  Attorney  General  Rodney — Monroe  MSS., 
Department  of  State. 

The  United  States  never  regarded  the  treaty  of  peace  as  a  grant  of  inde- 
pendence or  as  creating  the  several  colonies  as  distinct  political  corpora- 
tions. It  was  emphatically  a  treaty  "f  partition,  and  such  was  the  view- 
adopted  and  proceeded  upon  by  the  British  ministry  by  which  it  was  ne- 
gotiated. This  ministry  had  come  into  power  pledged  to  the  ide;)  of  a 
friendly  separation  between  the  two  parts  of  the  empire,  conceding  to  each 
certain  territorial  rights.  The  idea  of  a  future  reciprocity  betweeri  the  two 
nations,  based  on  old  traditions,  as  moulded  by  modern  economical  liber- 
alism, was  especially  attractive  to  Shelburno,  by  whom,  ;is  prime  minis- 
ter, the  negotiations  wer^  iiltiin:itol  v  cjosfd.  Wharton's  Int.  I,.-iw  nicest, 
vol.  3,  p.  40;  Bancroft's  P'ormation  of  the  Fed.  Const.,  vol.  vi,  ch.  i; 
Franklin  MSS.,  in  Departmeni  of  State. 


5° 


THE    LNnF.D    si  AXES    AND 


THE   NEGOTIATIONS  AT   GHENT. 

The  war  of  1S12  had  on  the  whole,  proved  disastrous  to  the 
American  arms.  While  the  navy  had  won  credit  on  the  ocean, 
uEn-land  did  .s  she  pleased  on  the  land."  The  condition  of 
affaire  was  -loomy  when,  in  the  autumn  of  1S14,  the  American 
Commissioners  arrived  at  Ghent.  The  proffered  mediation  of 
the  Emperor  of  Russia  had  been  refused  by  Great  Britam  and 
the  prospects  for  an  honorable  peace  were  far  from  flattering. 
The  Araeiican  Plenipotentiaries  were  J.  Q.Adams,  J.  A,  Bay- 
ard, Jonathan  Rus.ell,  Henry  Clay,and  Albert  Gallatin.  Great 
Britain  sent  Lord  Henry  Gambler,  Henry  Goulburn,  and  William 
Adams,  "none  of  them  very  remarkable  for  genius,  and  still  less 
for  wei-htof  Influence;  as  compared  with  the  American  Commis- 
sioners °hev  were  unequal  to  their  task.'"  But  this  was  of  little 
importance,  as  the  negotiations  were  directed  from  London,  and 
the  British  Commissioners,  "mere  puppets  of  their  govern- 
ment,'' lid  not  dare  to  move  without  seeking  the  approval  of 
Lord  '^astlereagh,  or  Lord  Liverpool. 

The  opening  of  the  negotiations  was  very  unsatisfactory 
to  the  Americans.  The  British  Commissioners  took  hign 
ground  and  treated  the  Americans  with  lofty  insolence,  making 
extravagant  territorial  claims  utterly  unjustified  by  the  state  ot 
the  war!  But  it  soon  became  evident  that  they  had  pitched  the 
negotiations  in  too  high  a  key.  The  claims  made  by  the  Brit- 
ish Commissioners  were  not  approved  by  the  Cabinet.  Lord 
Castlereagh  advised  a  considerable  "letting  down  of  the  ques- 
tion,"' and  Lord  Liverpool  replied  that,  "Our  Commissioners 
had  certainly  taken  a  very  erroneous  view  of  our  policy."' 

The  Americans  bluntly  refused  to  treat  on  the  basis  oi  uti 
possidetis  or  on  anv  basis  other  than  the  siuius  quo  ante  bcllum 
in  respect  to  territory.  It  seemed  to  all  that  the  negotiations 
were  at  an  end  unless  the  British  government  should  recede 
from  the  position  it  had  taken.     This,  after  a  careful  estimate  of 

>  Adams'  Life  of  Gallatin,  p.  519- 

Wellington  Sup.  Desp.  vol.  9.  p.  214-  ' 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


'^^ 


// 


<i^ 


S^4^. 


^/       A^>^ 


%^4p 


/<^,.% 
<  n  V 


y. 


c/. 


%o 


% 


1.0 


1= 

1.25 


•ii    IIIII2  2 


!!^  m 


1^0    ||ii!2.0 


1.4 


1.6 


V] 


c 


/] 


>^> 


e-H^M      s    :>      .    '^^ 


/A 


W 


Photographic 

Sciences 
Corporation 


<^^4^ 


.V 


13  WIST  MAIN  STRliT 

WflSTI*  N  Y    I4S«0 

I  716)  373-4S03 


\ 


THE    NORIHEAsTKK.N    FISHERIES. 


the  resourses  of  the  Empire,  it  decided  to  Jo,  and  once  on  the 
downward  track  Goulburn  was  not  allowed  to  stop  at  trifles. 
"These  gentlemen,"  wrote  Adams,  "after  commencino-  the 
negotiations  with  the  loftiest  pretences  of  conquest,  finally  set- 
tled down  into  the  determination  to  keep  Moose  Island  and  the 
fisheries  to  themselves." 

When  it  became  evident  to  the  British  Premier  that  no  treaty- 
would  be  signed  at  Ghent,    he    determined  to  send  the  Duke  of 
Wellington  to  America  with  full  power  to  fight  or  make  peace. 
Whe^his  brilliant  scheme  was  communicated  to  his  Grace,  he 
replied  in  a  letter  to  Lurd  Liverpool,  which  doubtless  had  great 
influence  on  the  course  of  the  negotiations.     He  told  him  that 
the  government  had  made  a  blunder;  "I  confess  that  I  think  you 
have  no  right,  from  the  state  of  the  war,  to  demand  any  conces- 
sion of  territory  from  the  Americans.  Considerino-  evervthino-. 
it  is  my  opinion  that  the  war  has  been  a  most  successful  one,  and 
highly  honorable  to  the  British  arms;  but  from  particular  cir- 
cumstances, such  as  the  want  of  the  naval   superiority  on  the 
lakes,  you  have  not  been  able  to  carry  it  into  the  enemies' terri- 
tory,  notwithstanding  your   nilitiry  success  and  now  undoubted 
military  superiority,  and  have  not  even  cleared  your  own  terri- 
tory of  the  enemy  on  the  point  of  attack.     You  cannot,  then, 
on  any  principle  of  equality  in  negotiation,  claim  a  cession  of 
territory  excepting  In  exchange  for  other  advantage,  which  you 
have  in  your  power.     I  put  out  of  the  question  the  posse  ,Mon  • 
taken  by  Sir  Job-  Sherbrooke  between  the  Penobscot  and  P as- 
sainaquoddy  Bay.     It  isevidently  only  temporary  and  till  a  larger 
force  will  drive  away  the  few  companies  he  has  left  there;  and 
an  oflicer  might  as  well  claim   the  sovereignty  of  the  ground 
on  which  his  piquets  stand  or  over  which  his  patrols  pass.    Then 
if  this  reasoning  be  true,  why   stipulate  for  the  «.':  possidetis} 
You  can  get  no  territory;  indeed,  the  state  of  your  mllit.iry  oper- 
ations, however  creditable,  docs  not  entitle  you  to  demand  any; 
and  you  only   afford   the   .Vmerlcans  a  popular    and  creditable 
ground,  which,  I  believe,  their  government  are  looking  for,  not 
to  break  off  the  negotiations,  but  to  avoid  to  make  peace.      If 
you  had  territory,  as  I    hope  you  soon  will    have  New  Orleans, 
I  should  prefer  to  insist  upon  the  cession  of  that  province  as  a 


I 


5» 


THE   UNITED    STATES    AND 


I 


separate  article  than  upon  the  uti  fo^sidetis  as  a  principle  of 

negotiation." '  •  i->     i 

At  t.le   preliminary  meeting   of  the.  Commissioners,    Ooul- 
burn,  speaking  for  the  British 'Commissioners,  stated  that  -'it 
was  thought  proper  in   candor  to  state  that  in  relation  to  the 
fisheries,  although  it  was  not  intended  to  contest  the  right  of  the 
United  States  to  them,  yet  so  far  as  respected  the  concessions  to 
land  and  dry  fish  within  the  exclusive  jurisdiction  of  the  British, 
it  was  proposed  not  to  renew  that  without  an  equivalent." »    At 
the  next   meeting    Adams   replied  to   this  by  stating  that  they 
had  not  expected  to  discuss  the  question  of  the  fisheries  as  it  was 
not  one  of  the  subjects  ol  difference  iu  which  the  war  originated. 
The  duty  of  drafting  the  articles  relating  to  the  boundaries 
and  the   fisheries   was   assigned    to   Gallatin.     He   drew  up  an 
article  which  recognized  and  confirmed  the  right  of  the  Ameri- 
cans to  fish  in  tntish  waters  and  the  British  right  to  navigate 

the  Mississippi. 

The  American  Commission   was    admirably    composed   for 
the  encouragement  of    internecine    strife  and  the  war  immed- 
iately   commenced   between    Adams   as  the  representative    of 
the    East  and  Clay  as    the    representative  of  the  West     From 
this   time   on  the  genuine  diplomatic  powers  of   Gallatin  were 
displayed,  not  in  dealing   with  the  British  C..-r.-nissioners,  for 
there  he  found  comparatively   clear  sailing,  but   in  preserving 
the   semblance   of  peace   between  his  colleagues.     It  seemed, 
to   Adams,   with   some   show    of  justice  it  must  be  confessed, 
that  the  remaining  members  of  the  Commission  had  organized 
for  the  purpose  of  irritating  him.     They  found  fault  with  all 
he  wrote,  until  Russell,  who  could  find   no  other   cause  for 
criticism,  suggested  that  in   the    future   he   should  "spell   until 

with  one  1." 

Adams    gives    the  following  interesting  account  of  one    of 

their  meetings: 

"Mr.   Gallatin   said    it   was   an  extraordinary  thing  that  the 
question  of  peace  or  war  depended  solely  upon  two  points,  'm 

«  Wellington  Sup.  Dc«p.  vol.  9,  p.  4^6;  Castlereagh  Corresp.  3d  Seric*. 


vol.  J.  p.  186. 


THE    NORTHEASTERN    FISHERIES. 


53 


which  the   people    of  Massachusetts  alone  were  interested  — 
Moose  Island,  and  the  fisheries  within  British  jurisdiction. 

«I  said  that  was  the  very  perfidious  character  of  the  British 
propositions.  They  wished  to  give  us  the  appearances  of  having 
sacrificed^the  interests  of  the  Eastern  section  of  the  Union  for 
those  of  the  Western,  to  enable  the  disaffected  in  Massachusetts 
to  say,  the  government  of  the  United  States  has  given  up  our 
territory  and  our  fisheries  merely  to  deprive  the  British  of  their 
right  to  navigate  the  Mississippi. 

"Mr.  Russell  said  it  was  peculiarly  unfortunate  that  the  inter- 
ests thus  contested  were  those  of  a  disaffected  part  of  the  country. 
«  Mr.  Clay  said   he  would  do  nothing  to  satisfy  disaffection 
and  treason,  he  would  not  yield  anything  for  the  sake  of  them. 
» But' said  I, 'you  would   not  give  disaffection  and  treason  the 
right  to  say  to  the  people  that  their  interests  had  been  sacrificed?' 
"He  said.  No.    But  he  was  for  a  war  three  years  longer.    He 
had  no  doubt  but  three  years  more  of  war  would  make  us  a 
wariike  people,  and  that  then  we  should  come  out  of  the  war 
with  honor.    Whereas  at  present,  even  upon  the  best  terms  we 
could  :  issibly  obtain,  we  shall  have  only  a  half  formed  army, 
and  half  retrieve  our  military  reputation.     He  was  for  playing 
brag  with  the  British  Plenipotentiaries;  they  had  been  playing 
brag  with  us  throughout  the  whole  negotiation;  he  thought  it 
was  time   for  us  to  begin  to  play  brag  with  them.     He  asked 
me  if  I  knew  how  to  play   brag.      I  had  forgotten  how.     He 
said  the  art  of  it  was  to  beat  your  adversary  by  holding  your 
hand,  with  a  solemn  and  confident  phiz,  and  outbragging  him. 
He  appealed  to  Mr,  Bayard  if  it  was  not. 

"'Ay,'  said  Bayard,  'but  you  may  lose  the  game  by  brag- 
ging until  the  adversary  sees  the  weakness  of  your  hand.' 
And  Bayard  added  to  me,  'Mr.  Clay  is  for  bragging  a  million 
against  a  cent.' 

"I  said  the  principle  was  the  great  thing  which  we  could  not 
concede;  it  was  directly  in  the  face  of  our  instructions.  We 
could  not  agree  to  it,  and  I  was  for  saying  so,  positively,  at 
once.  Mr.  Bayard  said  that  there  was  nothing  left  in  dispute 
but  ihe  principle.     I  did  not  think  so. 

"  •  Mr.  Ciay,"  said  i,*Mip|«»irig  r»ioo.-,c  i:-;;i..u  DCiuiioCvs  •>•-•  i^.;.:: 
tucky  and  had  been  for  many  years  represented  as  a  district  in 


'i'-V" 


m 


54 


THE    UNITED    STATES    AND 


your  Legislature,  would  you  give  it  up  as  nothing?  Mr. 
Bay&.  ~,  if  it  belonged  to  Delaware,  would  you  ?'  Bayard 
laughed  and  said  that  Delaware  could  not  afford  to  give  up 
territory. 

"■^Jr.  Gallot.'is  sa!d  -t  made  no  difference  to  what  state  it  be- 
longed, it  was  to  be  defended  precisely  in  the  same  manner, 
whether  to  one  or  to  the  other."' 

Adams  and  Clay  could  not  agree  as  to  the  relative  im- 
portance of  t>  e  questions  involved.  Clay  was  the  repre-' 
sentitive  of  the  west,  where  the  navigation  of  the  Mississippi 
by  the  Bridsh  was  regarded  as  a  rnstter  of  supreme  importance. 
He  was  willing  to  barter  the  fishing  rights  if  necessary,  in 
order  to  secure  the  abandonment  of  this  claim.  But  Adams,  thfi 
representative  of  the  east,  the  son  of  the  man  who  had  refused 
to  sign  the  treaty  of  1783  without  a  clause  guaranteeing  the 
fishery  rights,  as  liaturally  went  10  the  other  extreme.  He 
thought  the  British  right  to  navigate  the  Mississippi  of  no 
importance,  but  merely  a  matter  in  which  the  national  pride 
was  interested.  But  the  fisheries  were  to  him  one  of  the  most 
invaluable  and  inalienable  of  our  privileges.  Clay  v/as  not 
willing  to  concede  the  navigation  of  our  most  important  river 
for  "the  mere  liberty  01  drying  fish  upon  a  desert."  "  Mr.  Clay 
lost  his  temper,  as  he  generally  does,"  writes  Adams,  "  when- 
ever this  right  of  the  British  to  navigate  the  Mississippi  is  dis- 
cussed. He  was  utterly  averse  to  admitting  it  as  an  equivalent 
for  a  stipulation  securing  the  contested  part  of  the  fisheries. 
He  said  the  more  he  heard  of  this  (the  right  of  fishing),  the 
more  convinced  he  was  that  it  was  of  little  or  no  value.  He 
should  be  glad  to  get  it  if  he  could,  but  he  was  sure  the  British 
would  not  ultimately  grant  it.  That  the  navigation  of  the 
Mississippi,  on  the  other  hand,  was  an  object  of  immense  im- 
portance and  he  could  see  no  sort  of  reason  for  granting  it  as 
an  equivalent  for  the  fisheries."* 

When  the  commissioners  came  to  a  vote  on  Gallatin's  pro- 
posed article.  Clay  and  Russell  opposed  it  and  Gallatin,  Adams 
and  Bayard  approved  it.     It  was,  therefore,  voted  to  insert  the 

nrti<~1«»  in  »Ki»   nrniot CXav    nrnffstintr    that    h«»    wniilrl    nnt   Man. 

"^ ~  i — ; —      «•    i =    "- = - 

'  Memoirs  of  J.  Q.  Adams,  vol.  3,  pp.  ioi-3. 
*  Memoirs  of  J.  Q.  Adams,  vol.  3.  p.  71. 


THE    NORTHEASTERN    FISHERIES. 


55 


On  the  following  day,  however,  the  question  was  re-consid- 
ered v^d  Clay  proposed  that  instead  of  inserting  the  article 
in  the  treaty,  a  paragraph  should  be  inserted  in  the  note  which 
was  to  accompany  it,  suggesting  the  idea  that  the  Commission- 
ers were  not  authorized  to  discuss  the  fisheries.  While  this 
would  result  in  confirming  the  British  right  to  navigate  the 
Mississippi,  Clay  had  a  casuistic  theory  that  this  right  would 
be  valid  only  so  far  as  it  was  independent  of  Louisana. 

Gallatin,  who  was  inclined  to  think  that  the  British  had 
the  argument  on  their  side,  hesitated,  but  finally,  in  the  interest 
of  harmony,  accepted  the  amendment.  Clay's  compromise  was 
adopted  and  the  projet  which  was  sent  in  on  the  loth  of  Novem- 
ber contained  no  reference  to  the  fisheries. 

In  the  original  instructions  to  the  British  Commissioners, 
dated  July  28,  it  was  stated  that  the  provisions  of  the  treaty  of 
1783,  relating  to  the  inshore  fisheries  had  been  the  cause  of  so 
much  inconvenience  that  the  government  had  determined  not 
to  rerew  them  in  their  present  form  without  an  equivalent. 
In  supplementary  instructions,  dated  August  14,*  it  was  declared 
that  the  free  navigation  of  the  Mississippi  must  be  provided  for. 
•  Lord  Bathurst  seems  to  have  instructed  Goulbum,  that 
the  treaty  could  be  concluded  without  noticing  the  fisheries,  as 
the  crown  lawyers  had  given  an  opinion  that  the  right  had  been 
terminated  by  the  war.  "  Had  we  never  mentioned  the  subject 
of  the  fisheries  at  all,"  wrote  Goulburn,  "I  think  fhat  we 
might  have  argued  the  exclusion  of  the  Americans  from  them 
on  the  general  principle  stated  by  Sir  W.  Scott  and  Sir  C. 
Robinson;  but  having  once  brought  forward  the  subject,  hav- 
ing thus  implied  that  we  had  (what  Lord  Castlereagh  seemed 
really  to  have)  a  doubt  of  this  principle;  having  received  from 
the  American  plenipotentiaries  a  declaration  of  what  they  con- 
sider to  be  their  right  in  this  particular,  and  having  left  that 
declaration  without  an  answer,  I  entirely  concur  in  your  opinion 
that  we  do  practically  admit  the  Americans  to  the  fisheries  as 
they  enjoyed  them  before  the  war,  and  shall  not,  without  a  new 

--....     . .._ ,,  .......   ....  -   .-     ^^         -  T  --         -     -    T 

Dr.  Adams  and  Lord  Ganibier  do  not  agree  in  this  opinion. 


i>^:i 


I) 


'  Castlereagh  Corresp.,  3rd  Series,  vol.  3,  p.  S6. 


-g  THE    UNITED    STATES    AND 

You  do  us  but  justice  in  supposing  that,  without  positive  Instruc- 
tions we  shall  not  admit  any  article  in  favor  of  the  American 
fishery,  even  if  any  such  should  be  brought  forward  by  them ; 
indeed,  we  did  not  at  all  understand  your  letter,  either  public  or 
private,  as  implying  any  such  concession.'" 

On  the  26th  of  November  the  Briti^-h  counter-projet  was 
delivered  and  contained  no  allusion  to  the  fisheries  or  to 
Clay's  paragraph  in  regard  to  the  treaty  of  1783,  but  it  did  con- 
tain a  clause  providing  for  the  free  navigation  of  the  Mississippi 

by  the  British. 

This  counter-projet  was  the  Immediate  cause  of  another 
quarrel  between  Clay  and  Adams,  but  it  was  at  last  decided  to 
offer  the  navigatioii  of  the  Mississippi  for  u^e  fisheries.  This 
was  refused  by  the  British  Commlssionerr.,  who  proposed  to 
insert  an  article  referring  both  subjects  to  a  new  commission 
to  be  appointed  In  the  future.  Adams  was  unwilling  to  ad- 
mit that  the  liberties  granted  by  the  treaty  of  1783  were  open 
to  discussion,  but  Gallatin  and  the  other  commissioners  fav- 
ored a  qualified  acceptance,  subject  .to  the  condition  that  the 
negotiations  should  apply  to  all  differences  not  yet  adjusted  and 
involved  the  abandonment  of  no  rights  claimed  by  the  United 
States  in  the  fisheries.  But  it  w:is  found  Impossible  to  draft  an 
article  which  would  be  satisfactory. 

Goulburn  wrote  to  Lord  Bathurst:  "I  confess  my  own 
opinion  to  be  that  the  question  of  the  fisheries  stood  as  well 
upon  the  result  of  the  last  conference  as  it  can  do  upon  any  re- 
ply which  they  may  make  to  our  proposition  of  this  day.  The 
arguments  which  they  used  at  the  time  will  certainly  be  to  be 
learnt  only  from  the  ex  parte  statements  of  the  negotiators,  but 
the  fact  of  their  having  attempted  to  purchase  the  fisheries  Is  re- 
corded, ai  d  is  an  evidence  (to  say  the  least  of  it)  that  they 
doubt  their  right  to  enjoy  them  without  a  stipulation.  If  they 
receive  our  proposition,  all  will  be  well ;  but  if  they  reject  it, 
they  jnay  derive  from  that  rejection  an  argument  against  what 
we  wish  to  deduce  from  the  protocol."" 

But  Gallatin's  note  neither  accepted  or  rejected  the  offer, 
and   Goulburn   abandoned   hope    and   wrote  to  Lord  Bathurst 


>  Adims'  Life  of  Gallatin,  p.  543- 

»  Wellington  Sup.  Desp.,vQl.  9,  p.  472 ;  Adams'  Life  of  Gallatin,  pp.  544-5 


THE    NORTHEASTERN    FISHKRIES. 


57 


suggestinjj  that  the  treaty  should  be  silent  on  the  subject  of  the 
fisheries  and  the  Mississippi.*  The  result  of  all  was  that  on  the 
22nd  of  December  the  British  Commissioners  returned  an  an- 
swer stating  that  they  were  willing  to  withdraw  their  proposed 
article  and  allow  the  treaty  to  be  silent  on  the  subject.  This 
was  accordingly  done  and  the  treaty  was  duly  signed  on  Christ- 
mas day,  1814.  ' 


THE  TREATY   OF  1818. 

Immediately  after  the  close  of  the  war  for  Independence,  the 
United  States  very  generally  adopted  n  policy  having  for  its 
avowed  object  the  expulsion  of  the  loyalists  from  the  country. 
The  feeling  against  them  was  very  bitter  and  many  thousands 
left  the  country  with  the  departing  British  armies.     The  result 
was  that  these  people,  instead    of   being   allowed    to   become 
reconciled   to  the  .    anged  condition  of  affairs,  became  the  pio- 
neer population  of  new   English  provinces  on    the    northeast 
shore.      Very  naturally   the  claims  of  the  American  fishermen 
were  not  viewed  with  favor  by  their  old  Tory  enemies.     As 
early  as  1807  the  colonies  appealed  to  the  British  government 
for   protection  against   the  "agjjressions  "  of  their  American 
neighbors.     In  their  jealous  interest  they  employed  a  watchman 
who  "sat  in  the  log"  and  counted  the  vessels  of  the   Yankee 
fishermen  as  they  passed  through  the  vStrait  of  Canso,  counting 
in  one   day  nine  hundred  thirty-eight.     The  prospective   war 
between  the  United  States  and  England  was  eagerly  welcomed, 
for  in  that  event  ''won't  Engl.uid  whip  the  blasted  rebels  and 
shan't   we   all  get  our  land>  hack  again?"     It  was  believed  that 
such  a  war  would  put  an  end   to  the   American   rights  in   thj 
fisheries  as  recognized  in  the  Treaty  of  1783. 

When  the  war  actually  came,  "our  banished  countrymen" 
lost  no  time  in  presenting  their  memorials  representing  that  the 
American  fishermen  cTro«H!y  •«}»■••;:■!!  fh^jr  r~-'--'A-  ^^-  .„  !  i.t-_i 
sound  policy  required  the  cverl.isting  exclusion  of  both  F.ance 
and   the   United   States   from    the    fishing  grounds.      It  was  in- 

'  Wellington  Sup.  Denp.,  vol.  9,  p.  479. 


58 


THE    UNITED    STATES    AND 


sisteU  that  fifteen  hundred  American  vessels  had  been  engaged 
in  the  Labrador  fisheries  alone  in  a  single  seasv^n ;  that  these 
vessels  carried  and  dealt  out  teas,  coffee,  and  other  artic!c8  on 
which  no  duty  was  paid;  that  these  smuggler  and  interlopers 
exercised  a  ruinous  influence  upon  the  British  fishery  and  the 
morals  of  British  fishermen;  that  men,  provisions  and  outfits 
were  cheaper  in  the  United  States  than  elsewhere,  and  that  in 
consequence  British  fishermen  on  the  coast  could  buy  what  they 
needed  on  better  terms  of  the  American  vessels  than  of  the 
colonial  merchants,  for  which  reasons  the  merchants  hoped  that 
foreigners  should  no  longer  be  permitted  to  visit  the  colonial 
waters  for  the  purpose  of  fishing.' 

These  representations  caused  m«ich  excitement  in  New  Eng- 
land, and  were,  by  the  Boston  Centinal,  pronounced  "  alarm- 
ingly interesting." 

The  principles  urged  by  the  American  Commissioners  at 
Ghent  were  assumed  to  be  unsound  and  in  controvention  of 
public  law.  The  colonists  clamored  for  "protection,"  until  in 
1815  Her  Majesty's  ship  of  war,  Jasseur,  commenced  the  seizure 
of  American  fishing  vessels,  and  in  one  day  no  less  than  eight 
were  sent  into  the  port  of  Halifax  as  prizes.  The  B-itish 
charge  d'affaires,  in  reply  to  Monroe's  note  of  July  18,  1815, 
declared  that  the  commander  of  the  Jasseur  had  transcended 
his  authority,  and  gave  the  assurance  that  proper  orders  would 
be  issued  to  "  prevent  the  recurrence  of  any  similar  interrup- 
tions." The  seizures  were,  however,  continued  during  the  ne- 
gotiations at  London. 

From  the  :ene  of  hi^  cuccessful  labors  at  Ghent,  Gallatin  had 
gone  to  London  and  engaged  in  an  attempt  to  penetrate  the 
hide-bound  commercial  policy  of  Great  Britain.  Richard  Rush, 
who  was  then  minister  at  the  court  of  St.  James,  was  his 
colleague  in  these  negotiations.  A  commer  il  convention  was 
signed  Julv  3,  1815,  which  was  by  its  terms  .0  expire  in  July, 
18 18,  and  it  was  desirable  that  the  two  powers  should  arrive  at 
a  timely  agreement  for  its  renewal. 

TK-  T' -.:*-.-'  Sfatfs  took  advantage  of  this  opportunity  to 
open  up      e  subjects  left  in  an  unsettled  condition  by  the  Treaty 


»  Stbinc'*  Report  on  the  F'sherici,  p.  ii9- 


^ 


THE    NORTHEASTERN    FISHERIES. 


59 


of  Ghent — impressment,  which  Lord  Castlereagh  again  de- 
clined to  discuss,  the  boundaries,  commercial  intercourse  with 
Canada  and  the  West  Indies,  indemnity  for  slaves,  and  the 
northeastern  fisheries. 

The  British  government  was  represented  by  Mi.  Frederick 
Robinson,  afterwards  Lord  Goderich,  Earl  Ripon,  and   Mr. 
Goulbum.     Little  was  gained  by  this  convention,  but  a  com- 
Jjromise  was  affected  on  the  question  of  the  fisheries.     In  order 
to  gain  an  express  recognition  of  the  permanent  right  it  was 
found   necessary   to  concede  11. rotations  upon  the  practice.     Of 
this  compromise  Gallatin  wrote  to  Adams,'  on  the  6th  of  No- 
vember:     "  The  right  of  taking   and  drying  fish  in  harbors 
within  the  exclusive  jurisdiction  of  Great  Britain,  particularly 
on   coasts   now  inhabited,  was  extremely  obnoxious  to  her,  and 
was  considered  as  what  the   French  civilians  call  a  servitude. 
And  personal  pride  seems  also  to  have  been  deeply  committed, 
not  perhaps  the  less  because  the  argument  had  not  been  very 
abjv  conducted  on  their  part.     I  am  satisfied  that  we  could  have 
obtained  additional  fishing  ground  in  exchange  for  the  words 
'forever.'      •      •     •     Yet  I  will  not  conceal  that  this  subject 
caused  me  more  anxiety  than  any  other  branch  of  the  negotia- 
tions, and  that,  after  having  participated  in  the  Treaty  of  Ghent, 
it  was  a  matter  of  regret  to  be  obliged  to  sign  an  agreement 
which  left  the  United  States  in  any  respect  in  a  worse  situation 
than  before  the  war.     •     •     •     And  if  a  compromise  was  to 
take  place,  the  present  time  and  the  terms  proposed  appeared 
more  eligible  than  the  chance  of  future  contingencies.     •     •     ♦ 
With  much  reluctance  I  yielded  to  those  considerations,  rendered 
more  powerful  by  our  critical  situation  with  Spain,  and  used  my 
best  endeavors  to  make  the  compromise  on  the  most  advanta- 
geous terms  that  could  be  obtainid." 

The  convention  was  signed  October  8,    i8i8  and  Article   I 
provided  that: 
Whereat  differences  hare  arisen  respecting  the  libe-ty  claimed  br  the 

'-''•-■  -■'■~   Jr.nsnus.ili  incicoi,   i»  Ukc,  dry,  and  curr   nsh    on 

certain  coa»ts,  bajs,  hnrbor*  and  creek*,  of  Mi*   Britannic    Majesty's   do- 
minions in  America,  it  is  agreed  between   the   high   contracting  parties 
that  the  inhabitant,  of  the  sa>d  Lnited  .States  shall  have  forever,  in  Con. 
men  with  the  subjects  of  His  Britannic  Majoty.thc  libort^  to  take  fish  of 

'  Gallatm's  Writings,  vol.  i,  pp.  83,84. 


6o 


THE    UNITED    STATES    AND 


every  kind  o»  that  part  of  the  southern   coast  of   Newfoundland  which 
r  H    from  Cape   Ray  to  the  Rameau   Islands;  on  the  western  and 
"itrcoTstf  of  Newfoundland  from  the  said  Cape  Ray  to  the  Quirpo. 
XdsTon    he  southern  shores  of  the  Magdalen  I.land,  and  aUo  on  th. 
loits  bays  harbors  andcreeke.  from  Mount  Jolly,  on  the  southern  coast 
:    L  brX  to  and  through   the   straits  of  Belle  Islands,  and   thence 
northwardly  indefinitely  along  the  coast,  without  prejudice,  however  .o 
;;rof  the  exclusive  rights  of  the  Hudson  Bay   Company;  »nd  that  the 
Amer  can  fishermen  shall   have  liberty   forever  to  dry   and  cure  fish 
in  an;  of  the   unsettled  bays,  harbors,  and    creeks  of  the    -"^;- 
oartof  the   coast  of    Newfoundland    hereinbefore    described,   and  of 
the  coast  of  Labrador;  but  so  soon  as  the  same  or  any  part  thereof, 
Tall  be  settled,  it  shall  not  be  lawful  for  said  fishermen  to  dry  or  cure 
fish  at  such  portion  so  settled,  without  previous  agreement  for  such  pur- 
pose with  thVinhabiUnts,  proprietors,  or  possessors  of  the  ground.     And 
S^e  United  States  hereby -enounces  forever  any  liberty  theretofore  en- 
5oy.d  or  claimed  by  the  inhabitants  thereof  to  uke.  dry  or  cure,  fish  on 
or  within  three  marine  miles  of  anv  of  the  coasts,   bays,  creeks    or   har- 
bor, of  His  Britannic  Majesty's  dominions  in  America  not  mcluded  In  the 
aLve  mentioned  limits.     Provided,  however,  that  the  American   fisher- 
men shall  be  permitted  to  enter  such  bays  or  harbors  for  the  purpose  of 
Thelter,  and  of  repairing  damages  therein,  of  purchasing  wood,  and  o^  ob- 
taining water,  anS  for  no  other  purposes  whatever.    But  they  shall  be  un- 
der  such  restrictions  as  r. ay  be  necessary  to  P-^^V^^^'^J'^^^^;.  ^es 
mg  or  curing  fish  therein,  or  in  any  other  manner  abusmg  the  privileges 
hereby  secured  to  them.  •  .,    ,  ,  .u„» 

The  proviso,  as  at  first  drafted  read :    "Provided,  however.that 
the  American  fishermen  shall  be  permitted  to  enter  such  bays,  and 
harbors  ior  the  purpose  only  of  obtaining  shelter,  wood,water  and 
bait  "     In  order  to  obtain  as  great  an  area  for  inshore  fishing  as 
possible  the  American    Commissioners   consented    to  omit   the 
words  "ind  bait"  thus  sacrificing  what  has    proved    of    greater 
importance.     The  treaty  was  made  with  reference  to  cod  fish- 
ing,  as  the  mackerel  fishing  was  then  of  but  slight  importance. 
Soon  after  the  signing  of  the  treaty  the  Imperial  Parham^nt 
enacted  a  statute  to  carry  out  its  provisions.'    This  act  provided 
that  His  Majesty  in  Council  should  make  such  regulations  and 
givesuch  instructions  as  might  be  deemed  proper   for  cyrying 
into  effect  the  treatv  and  declared  that  it  shall  not  be  lawful  for 
any  foreigners  or  foreign  vessels^  fish   for,  or  take,  dry,  or 

»  Treaties  and  C^nVt^tior^  between  United  States  and  other  Powers, 
p.  350.  For  protocols  of  co-^fercnces  and  report  of  Commissioners,  sec 
Am.  St.  Pap  (For.  Rel.),  vol.  4,  p-  3S»;  ^ol.  3,  PP-  T^S.  707.  73J-745- 

» ^9  Geo.  Ill,  c.  38. 


« 


\ 


->i-   V    r- 


^'-^'liitu' 


THE    NORTHEASTERN    FISHERIES. 


6l 


cure,  ^sh  within  three  marine  miles  of  any  coasts,  bays,  creeks, 
I  or  harbors,  whatever,  in  any  part  of  His  Majesty»s  dominion  in 
American  not  included  in  the  Umits  of  the  treaty;  and  that  if 
I  any  such  foreign  vessel,  or  any  person  on  board  thereof,  shall 
be  found  fishing,  or  to  have  been  fishing,  or  preparing  to 
fish,  within  such  distance  of  such  coast,  bays,  creeks,  or  har- 
bor—outside of  said  limits,  such  vessels  may  be  seized  and  con- 
demned; that  it  shall  be  lawful  for  United  States  fishermen  to 
«nter  bays,  and  harbors  for  the  purpose  of  shelter,  and  for  the 
purpose  of  purchasing  wood  and  water,  subject  to  such  restric- 
tions as  shall  be  prescribed  by  His  Majesty  in  Council;  that  if 
any  such  persons  after  being  required  shall  refuse  to  depart  from 
such  bay  or  harbor  and  shall  refuse  or  neglect  to  conform  to 
any  such  requirements  he  shall  forfeit  the  sum  of  two  hundred 

pounds. 

Such  were  the  leading  provisions  of  the  Imperial  Act.  Be- 
tween the  years  1818  and  1854  the  Provincial  Legislatures 
of  Canada,  Nova  Scotia  and  New  Brunswick  passed  various 
statutes  purporting  to  be  based  on  the  treaty.  They  were  more 
stringent  and  much  more  minute  in  their  provbions  than  the 

Imperial  Act'  •  ' 

Trouble  soon  grew  out  of  the  different  interpretations  of  the 
treaty  of  18 1 8.  American  vessels  were  seized  while  engaged 
in  fishing  in  the  Bay  of  Fundy  when  more  than  three  miles 
from  shore.*  The  United  States  government  understood  the 
phrase  "three  -arine  miles  from  the  coast"  to  mean  from  the 
coast  following  all  its  sinuosities.  But  the  English  government 
claimed  that  it  was  from  a  line  drawn  from  headland  to  head- 
land.    The  American  view  was  first  advanced  in  1824  when  the 

«  The  AcU  parsed  by  the  provinces  now  constituting  the  Dominion  o( 
Canada  Hhirh  were  claimed  to  be  merely  declaratory  of  the  Imperial 

Statute  are : 
Dominion  AcU,  ,'«Vict.  cap.  6 ;  33  Vict.  cap.  16 ;   now  incorporated  in 

Revised  Sututes  of  i886,  cap.  90. 
Nova  Scotia  Acts,  Revised  SUtutes,  3d  series  cap.  94,  29  Vict.  (:d66), 

cap.  35- 

\J~.-  i>»....^sl2>V   Arts    ;^  Vict.  ^!!!£tV  CS.O.  6q. 

Prince  Edward  Island  AcU,  6  Vict.  (1843),  cap.  14. 
See  H.  R.  Doc.  No.  19,  49th  Cong,  and  Sess.,  p.  29. 
«  Pres.  Monroe's  Message,  Feby.  23.  '825,  H.  R.  Doc.  No.  408,  i8  Cong, 
and  Sess,  Am.  SUte  Pap.  (For  Rel.),  vol.  5,  p.  735- 


62 


THE    UNITED    STATES    AND 


United  States  complained  of  interference  with  the  taking  and 
curing  of  fish  in  the  Day  of  Fundy  and  the  seizure  of  vessels.' 
In  February  1825  Mr.  Addinjjton  replied  justifying  such  seizures 
on  the  ground  that  the  Bay  of  Fundy  was  within  the  limits  of 
the  prohibition  of  the  treaty.     In  1S40  the  President  transmitted 
to  ConoTCss  various  documents  relating  to  the  seizure  of  Ameri- 
can vesMls  in  Canadian  waters  during  the  year   1839.     Among 
them  was  a  letter  from  Lieut.  Paine,  an  r.tficcr  of  the  United 
States  navy,  dated  December  29,  1839,  in  which  the  points  at 
issue  are  stated  as  follows.     "The  Canadians  apply  the  word 
•bays'*  to  all  indents  of  the  coast,  and  would  refuse  admission 
within  lines  drawn  from  one  extreme  headland  to  another,  no 
matter  how   large   an   extent  of  water  it  included;  while  the 
Americans   insisted  that  the  Bays  of  Fundy,  Chaleurs,  Miri- 
michi,  and  some    others  are  open  to  a  line  three  miles  from   he 

concave  shore.'' 

During  the  next  three  years  an  elaborate  correspondence 
was  conducted  between  the  two  governments.  On  the  loth  of 
July,  1839,  Mr.  Vail,  Acting  Secretary  of  State,  complained 
to  Mr.  Fox,  the  British  Minister,  of  seizures  in  the  Bay  of 
Fundy  by  the  government  vessel  the  Victory.  In  February 
1 841  the  Secretary  of  State,  Mr.  Forsyth,  sent  elaborate  in- 
structions io  Mr.  Stevenson,  the  American  Minister  at  the  Court 
of  St  James,  setting  forth  the  claims  of  the  Umted  State-^  In 
the.  following  March,  Stevenson  brought  the  matter  to  the 
attention  of  Lord  Palmerston,*  bixt  elicited  no  response  other 
than  a  statement  that  the  communication  had  been  referred  to 
the  Secretary  of  State  for  Colonial  affairs. 

A  copy  of  the  dispatch  was  sent  to  Lord  Falkland,  L  ieutenant 
Governor  of  Nova  Scotia,  with  the  request  that  he  investigate 
the  allegations  contained  m  it  and  report  fully  to  Her  Majesty's 
government.  On  the  28th  of  April  Lord  Falkland  wrote  to 
Lord  John  Russell:  "The  greatest  anxiety  is  felt  by  the  inhabi- 
tants of  this  province,  that  Lhe  convention  with  the  Americans 

>  Message  of  Pres.  Monroe,  Feby.  26,  1825,  H.  Doc.  No.  408, 18th  Cong., 

3d  Sess;  Am.  St.  Pap.,  (For.  Rel.)  vol.  5,  p.  735- 

•  » • t  ..1--.  ... I  iiVn.,,,0  "  ewe  en«»i»rh««R  of  S*»n.   Cass.   Auf.    %. 

•  r  ur  Ilicai;2::jj  ---l   :::-    -rr-.-i-j        ....J..       -; -  .  ..       -. 

1853,  Cong.  Globe,  (app.)  vol.  25,  p.  895,  and  of  Sea.  Ilamlln,  of  same  date. 
Ibid.  p.  900. 

•  Ex.  Doc.  No.  100,  32d  Cong.,;ist.Ses8.,  p.  113. 


THE    NORTHEASIKRN    KISHEKIES. 


63 


feigned  at  London  on  the  .oth  of  October,  .8,8,  should  be 
fst'ctly  enforced;  and  it  is  hoped  that  the  consulerat.on  of  the 
eport  may  induce  your  lordship  to  exert  your  mfluence  u.  such 
at.  ner  as  to  lead'to  the  augmentation  of  the  force  (a  smgle 
veTsel)  now  engaged  in  protecting  the  fisheries  on  the  Banks  of 
N  wf  undlandrand  the  south  shore  of  Labrador,  and  the  em- 
ployment, in  addition,  of  one  or  two  steamers  for  that  purpose 

In  this  letter  was  enclosed  a  copy  of  a  report  of  a  comm.ttee 
on  the  fisbe..ies  of  the  House  of  Representatives  of  Nova  Scot.a 
'  and  a  "case  stated"  for  the  purpose  of  obtaining  the  opm.on  of 
the  law  officers  of  the  Crown  u.  England. 

X      Whether  the  treaty  of  1783  was  annulled  by  the  var  of 
r8i;,  and  whether  citizens  of  the   United  States  possess  any 
right  of  fishery  in  the  waters  of  the  lower  provinces  other  than 
ceded  to  them  by  the  convention  of  x8i8;  and  ,^  so,  what  nght. 
2      Have  American  citizens  the  right,  under  that  Convention, 
to  enter  any  of  the  bays  of  this  province  to  take  fish  if,  atter 
they  have  so  entered,  they  prosecute  the  fishery  rr^re  than  three 
marine  miles  from  the  shores  of  such  bays;  or  should  the  pre- 
scribed distance  of  three   marine  miles  be  measured  from   the 
headlands,  at  the  entrance  of  sucn  bays,  so  as  to  exclude  them? 
,     Is  the  distance  of  three  mavine  miles  to  be  computed  from 
the  indents  of  the  coasts  of  British  America,  or  from  the  ex- 
treme  headlands,  and  what  ;         be  considered  a  headland  ? 

4  Have  American  vessel  itted  out  for  a  fishery,  a  right  to 
pass  through  the  Gut  of  Ca  ..o,  which  they  cannot  do  without 
coming  within  the  prescribed  limits,  or  to  anchor  there,  or  to 
fish  there;  an.  is  casting  bait  to  lure  fish  in  the  track  of  the 
vessels,  fishing,  within  the  meaning  of  the  Convention  ? 

c:     Have  American  citizens  the  right  to  land  on  the  Magda- 
len Islands,  and  conduct  the  fishery  from  the  shores  thereof,  by 
us.ng  nets  and  seines,or  what  right  of  fishery  do  they  possess  on 
the  shores  of  those  islands,  and  what  is  meant  by  the  term  shore  ? 
6      Have  American  fishermen  the  right  to  enter  the  bays  and 
harbors  of  this  province  for  the  purpose  of  purchasing  wood  or 
obtaining  water,  having  provided  neither  of  t^^^^J^''^'";;''*  J^J^ 
commencement  of  their  voyage  In  their  uv.i:  euuntry,  <^r 
they  the  right  only  of  entering  such  bays  and  harbors  in  cases 
of  distress,  or  to  purchase  wood  and  obtain  water  after  the  usual 


•^^f 


64 


THE    UNITfc-U    STATES    AND 


Stock  Of  these  articles  for  the  voyage  of  such  fishing  craft  has 

,o   hedtizensof  the  United  States  of  America    and  what  re- 
served  for  the  exch.sive  enjoyment  .f  Br.t.sh  subjects? 

These  learned  gentlemen,  Sir  John  Dobson  and  S.r  Thomas 
wLe    al    vered  'to  the  first  query:     "We  have  the  honor  to 
rlpor     that  we   are  of   opinion   that  the  treaty   of    1783  was 
annulled  by  the  war  of   181.;  and  we  are  also  of  opm.on  tha 
the  rights  of  fishery   of  the  citizens  of  the  United  States  must 
now  Reconsidered  as  defined  and  regulated  by  the  convention 
of    t8i8;  and   with  respect  to  the  general  question  'if  so,  what 
tht?'  we  can  only  refer  to  the  terms  of  the  convent.on  as  ex- 
pfained  and  elucidated  by  the  observations  wh.ch  wdl  occur  m 
answerine  the  other  specific  queries." 
T   "Except  „iU,i,>co,.»i..,l.n„ed  limits,  to  wh.ch  U,.-  qt.ery 
pu  'to  us  aol  not  apply,  wc  are  of  opinion  that,  by  the  term 
^"the  treaty,  American  ca,.cn,  are  esch,dal  fr,m,  the  r,gh.   of 
fisWr^  within  >hrec  miles  of  the  coast  of  British  Amer.ca,  and 
fha    he  prescribed  distance  of  tltree  nules  is  to  be  .measured    rom 
the  headlands  or  extreme  points   of  land   next  <he  sea     f     h 
coasts,  or  of  the  ent,  ,nce  of  the  bays,  and  not  from    he    n.enor 
of  sfch  hays  or  inlets  of  the  coast;  and  consequently    that  no 
°?ht  exists  on  the  part  of  American  citizens  to  enter  the  bays 
of  Nova  Scotia,  there  to  take  fish,  although  the  hsh.ng,  t^  ng 
within  the  bay,  n,ay   "-'  ^  ^-— "f  "'"."'^'" /'^T  ^ 
from  the  shore  of  the  bay,  -"-"'"    ""'T     the  land  we 
hea.lland  is  used  in  the  treaty  to  express  the  part  <>/  *=  '  "^  J^^ 
have  bef..,.    mentioned,  excluding  the  mtenor  of  the  bays  and 
inlets  of  the  coasts.  . 

,.4  "  By  the  treatv  of  .8.8  it  is  agreed  that  American  cifzcns 
,houM  havithe  libert'y  of  fislnng  in  the  (=ulf  ot  St  -awraKe, 
within  ce.tain  defined  limits,  in  common  w,.h  "''^'^"^^ 
and  such  treaty  doe,  no.  contain  any  words  negat.v,,  R  the   .Kh 

to  navigate  the  passage  of  the  «"'<'' <-""'"'.' '""' "'-;'2'I 
.      may  be  conceded  that  such    right  ..f  nav.gat.on  .s  not  taken 


away   by   that   convention; 


l)ut    wc    na^c    ii>'«  ..i»^- 


Sll 


Icred   the    cuu 


rsc   of    navigation  to 


the  (}ulf  by  Cape  Hrcton, 


iin.i  likewise  the  cai.acity  and  situation  o 


f  the  1 


lassage 


of  Canso, 


THE    NORTHEASTERN    FISHERIKS. 


65 


and  of  the   British  dominions  on  cither  side,  and  we  are  of    he 

IpLon  that,  independently   o'     r.aty,  no  forc.gn  country  has 

l^h     ri"ht  to  use  or  navigate  tl  •   .     .age  of  Canso;  and^attencW 

ne  To"  the  terms  of  .he  conve...on  relating  to  the  liberty  of 

fishing  to  be  enjoyed  by  the  Americans,  we  are  also  of  op.n.on 

fha   that  convention  did  not  either  expressly  or  by  .mphcat.on 
'    0  cde  any  such  right  of  using  or  navigatmg  the  pa^^nge  m 

cue    ion.     We  are  also  of  opinion  that  casting  ba.t  to  lure  fish 
n'he  track  of  any    American  vessels  nav.gatmg  the  passage, 

would  constitute  a  fishing  within  the  negative  terms  of  the  con-  ^ 

''f '"  With  reference  to  the  claim  of  a  right  to  land  on  the 
Magdalen  Islands,  and  to  fish  from  the  shores  thereof    it   must 
b    observed  that  by  the  treaty  the  liberty  of  drymg  and  cunng 
fish  (purposes  which  could  only  be  accomplished  by  landmg) 
:n  any  of  the  unsettled  bays,  &c.,  of  the  southern  part  of  New- 
founlland  and  of  the  coast  of  Labrador,  is  ^Pe^'^^^^^^  P-'^rf 
for-  but  -uch  liberty  is  distinctly  negatived  in  rny  se  tied  bay 
t'   1  it   must  therefore  be  inferred  that  if  the  liberty  of 
laning  on  the  shores  of  the  Magdalen  Islands  nad  been  in- 
tended to  be  conceded,  such   an   .mportant  concession   would 
have  been  the  subject  of  express  stipulation,  and  would  neces- 
sarily have  been  accompanied  with  r  description  of  the  inland 
extent  of  the  shore  over  which  such  liberty  was  to  be  exercised, 
and   whether  in  settled  or  unsettled  parts;  but  neither  of  these 
in-.portant  particulars  is  provided  for,  even  by   implication;  and 
that,  among  other  considerations  leads  us  to  the  concl.s.on  that 
American  citizens  have  no  right  to  land  or  conduct  the  hshcry 
from  the  .hores  of  the  Magdalen  Islands.     1  he  word^shore 
does  not  appear  to  be  used  in  the  convention  in  any  other  than 
the  ee-eral  or  ordinary  sense  of   the  word,  and  must  be  con- 
strued wit:,  reference  to  the  liberty  to  be  exercised  upon  .t   and 
would  therefor,  comprise  the  land  covered  with  water  as  far  as 
could  be  available  for  the  due  enjoyment  of  the  liberty  granted. 
6     "By  the  Convention  the  liberty  of  entering  the  bays  and 
»,orLr,  of  Nova  Scotia   for  the   purpose  of  purchasnig  wood 
.„A   «Kt.,inin^   ^-ater  is  conceded  in  general  term.,  unresir.clco 

I-     1  1: :»:....  ;»  ».>  v  <»i<i><K  liulv 

I  exprcssf 


by  any  condition 
provided  at   the    jomm 


ence 


met    of  the  voyage;  ami  we  are  of. 


THE    UNITED    STATES    AND 
66 

opinion  that  no  such  condition  can  be  attached  to  the  enjoyn.ent 

of  the  liberty.        ^  ^^  ^^^^^^  ^^^^^  ^^  ^^^  ^.^.^^^^  ^^  ^^^  ^nitea 

Stlies  and  -ose  eserved  for  the  exclusive  enjoyment  of  Bnt- 
frsubjccts,  depend  altogether  upon  the  convention  of  1818, 
;'  only  existing  treaty  on  this  subject  between  the  two  coun- 
ries  and  the  material  points  arising  thereon  have  been  speafi- 
caiu'  answered  in  our  replies  to  the  preceding  quenes. 

As  the  word  "headland"  does  not  appear  m  the  treaty  there 
is  Voom  for  suspicion  that  Her  Majesty's  kgal  adv.sers  were 
determined  to  produce  an  opinion  which  would  be  satisfactory 
to  the  colonists  even  though  they  were  obliged  to  create  a  new 

'"Ught  is  thrown  upon  the  proper  construction  of  the  first  arti- 
cle of  the  Convention  of  i8i8by  a  letter  of  Richard  Rush  to  he 
Secretary  of  State,  bearing  date  the  xSthof  July,  1853:  "I" 
fignCit,  we  believed  that  we  retained  the  right  of  fishmg  m 
r  ea,  whether  called  a  bay.  gulf,  or  by  whatever  term  desig- 
nated that  washed  any  part  of  the  coast  of  the  Bnt.sh  North 
American  Provinces,  with  the  simple  exception  that  we  d.d  „o 
come  within  a  marine  league  of  the  shore.  We  inserted  th^ 
clause  of  renunciation.     The   British  plenipotentiaries  did  not 

'tord  Stanley,  afterwards  Earl  of  Derby  and  P"me  Minister 
who  had  succeeded  Lord  John  Russell  a.  Secretary  of  St.  te  fo 
the  Colonies,  w.  in  no  hurry  in  communicating  the  opinion  of 
the  law  officers  to  Lord  Falkland.     It  was  finally    o-arde^  - 
November,    1S42,  accompanied  by  a  letter  stating  that  the  sub- 
ject "has  frequently   engaged   the  attention  of  myself  .nl  my 
colleagues,  with  the  view  of  adopting  furth.r  — '-;;;  ^^ 
essary,  for  the  protection  of  British  inter,  .s  in  accordance  with 
the  law  as  laid  down  in  the 'opinion.'                             ^^  th^  ^on- 
uWe  have,  however,  on  full  consideration   come  to  the  con 
elusion,  as  regauls  the  fisheries  of  Nova  Scotia,  that  the  p-cau^ 
tions  taken  by  the  provincial  legislarur.  appear  adequate  to  the 
purpose;  and  that  being  prantically  acquiesced  in  by  the  Amer- 
icans, no  further  measures  are  required." 


For  Mr.  Rush's  note-*  see 


Monroe  Paper*.  MS-S..  Department  of  State. 


THE    NOKTHEASTF.RN    KISHEKIES. 


67 


Jn  the  meantime  Mr.  Stevenson  had  been  succeeded  at  the      . 
furt  of  St.  James  by  Edward  Everett, 
[in  May.  .843  the   American  fishing  schooner  Washmgton 
L  seized  while  engaged  in  "..hing  in  the  Bay  of  Fundy    ten 
Ls  from  shore,  for  alleged  violation  of  the  treaty.     In  June 
Lwing  Secretary    Upshur    instructed    Mr.   Everett     to  call 
[e  attention  of  the  British  governor  to  the  seizure.     On  the  loth 
t  Au<.ust,  Mr  Everett  complied  in   a  letter  of    great  ability 
fhich^called  forth  an  elaborate  answer  from  Lord  Aberdeen, 
,  which  Mr.  Everett  replied  at  length. 

On  the  loth  of  March,  1845,  Lord   Aberdeen  announced  to 
jlr  Everett  that  while  the  British  government'  did  not  admit 
L  American  construction,  or  abandon  its  own,  yet,  out  of  con- 
federations of  courtesy  it  would  grant  to    American    fishermen 
L  ri-ht  to  fish  In  the  Bay  of  Fundy,  "provided  they   do  not 
[pprolch,  evcept  in  the  cases  specified  in  the  treaty  of   1816. 
Vithin  three  miles  of  the  entrance  of  any  bay  on  ihe  coast  of 
.sfova  Scotia  or  New  Brunswick."*     Mr.  Everett  refused  to  ao 
L.  this  as  a  favor  and  in  his  reply  '  again  stated  the  Amencan 
claim,  "not  for  the  sake  of  detracting  from  the  liberality  evinced 
-bv  Her  Majesty's  government  in  relaxing  from  what  they  re- 
Igard  as  their  right,  but   it   would  be   placing  his  own  govern- 
Iment  in  a  false  position  to  accept  as  a  mere  favor  that  for  wh.ch  . 
they  had  so  long  and  so  strenuously  contended  as  due  them  from 

I  the  convention." 

Mr."  Everett  thought  the  negotiations  were  now   in  a  most 

favorable  state  for  a  full  and  satisfactory  adjustment  of  the  dis- 

pute.     The  opening  of  the  Bay  of  Fundy,  "though  nominally 

I  confirm:ng  the  interp-.ctation  of  the  treaty  which  the  colonial 

'  authorities  had  set  up,"  was  in  fact  "a  practical  abandonment 

1  Ex.  Doc.  No.  lOO,  3ind  Cong.,  ist  Sess.,  o.  u?- 
» Ex.  Doc.  No.  100.  3i»J  Cong.,  'st  Sess..  p.  121. 

•  Ex  Doc   No   100,  32n('.  Conn.,  i*t  Sess.,  p.  i35- 

♦  A.  to  British  Concessions  that  the  B.^  of  Fundy  i»  an  open  sea.  see 
paoers  with  message  of  Pre..  Filhnore.  February  .8.  '^SJ.  "'''^^^Senate 
Confid.  Doc.  Nc.4.  Special  Se,s.  1853;  Particularly.  Mr.  Everett  to  Mr. 
Ingersoll,  Dec.  4.  i8S4.  ^^^sS.  lust.  or.  iiriU.  apj^c.ucu  i^  ui_:r. :::■-•  -  — 
«age,  Whartons  Dig   Int.  Law.  vol.  3.  p.  59- 

»  Ex.  Doc.  No.  I'JO.  3ind  Cong.,  ist  Sess.,  p.  136 


THE    UNITED    STATES    AND 

,  -  r  11  =f  i^minnce  that  the  British  govern- 
of  "■"  He  '■"Vra  frfurtheTe"  ,n.;on  ol  .he  same  policy 
„ent  "^-''7'»':'^„','';jtgl.i„„  that  American  fishermen 
rrVolX:;;' .rfnte.  .«  ^^  o.  .hlch  *.  mo„a. 
„„e  no.  morcthan^s^  mUes  In  -^*.___^.^^,^  .  ,,,  ,„,„,.„„.„ 

In  May  1845,  Lord  """    ^,         ,.   .  „questing  .hat,asthe 
Lord  FalUand  who  .mmed^e^^^^^^^^^ 

plan  aSeCcd  *e'«^''''Xc:„ld  again  commu«ca.e  wl.h  him. 

arions  be  suspended  ""''' f  "7„='„^,„      General  of  .he  Colony 
A  report  V.  as  prepared  by. he  A..orny  ^^^   ^^^^^^ 

^i  forwarded  to    England,    ^ew    B  ^^ 

Simonds,  speaker  of  the  House  of  Assembly,  B 

and  turn  the  ministry  from  'heir  P-rpo^'-  ^^^_ 

Simonds  went  to  Englan     ^^'^^^f^^^^^L   .ha.   .he 
gations,   was   '»  .'"""f '    '"„p  „,,^f   the   premier.    Sir 
.  liberal  policy  «h.ch  1  ad   the  -PP'o  j^„„  £,„„, 

^"""^  !tdriettr-   heir  memorials  and  representations 

tinue.  ,  o   ^   T  ,  rr^  Stanley  wrote  to  Lord 

Falkland:     "Her  Majesty  s  go  dispatches,  re- 

.aered  the  ^^^-^~,::^j:jr^.  fishermen  of 
specting  the  pohcy  of  g-^-^^^Bay  of  Chaleurs,  and  other  large 
the  United  States  to  fish  in  ^l^^^^^  ^^^^  Brunswick  and 

bays  of  a  ^^^^^^^^^^'^ZZ^ioT^^^^^  that  any 

Nova  Scotia;  and  apprehendmg  from  y  ^^^^^^^  ^^ 

such  general  concession  would  ^^ '"  ^"^^Z  J^^^  ^^^^^^oned  the 
the  British  North  American  P---  ;^^^^^^^^^^^  ^U  adhere  to 
intention  we  had  entertained  on   he  -^J^t  ^^.^^.^ 

-  the  strict  letter  of  the  treaties  -^^^  ^^^^^^^^^^  ^,,,h  America, 
and  the  United  States,  relative  '«  t^^ J^^^^;^;  ^,  p.^jy,  which 
except  in  so  far  as  they  may  reUte  to  theJBay  ^^^  ^_^^^y  ^^^^.^ 

has  been  thrown  open  to  the  ixor 

restrictions."  ^venions  to  clo-^e  the  Gut  of 

Nova  Scotia  was  active  in  her  exe.tions  lo     ^  ^^^  ^^^^^^^  ^^ 

"an  el.bora.e  repor.  in  favor  of  such  aCon. 


THE    NORTHEASTtRN    FISHERIES. 


69 


For  more  than  six  years  our  diplomatic  correspondence  does 
Ut  mention  the  suhject  of  the  fisheries.  But  between  the  years 
J847  and  iS^i  overtures  were  made  to  the  United  States  for  "  a 
free  interchange  of  all  natural  products,"  of  the  British  colonies 
jtnd  the  United  States  by  treaty  stipulation  or  legislation.  Canada 
jassed  an  act  having  thi:  object  in  view  in  1847,  to  become 
jperative  when  the  United  States  sliould  adopt  a  similar  meas- 
ire.  But  Congress  refused  to  pass  such  a  law  although  per- 
Bistentlv  urged  at  three  successive  sessions.  Canada  was  very 
inxious  to  secure  the  passage  of  the  law  and  upon  the  final 
refusal  of  Congress  gave  vent  to  her  indignation  in  what  is 
Iknown  as  the  Toronto  agreement,  signed  the  2ist  of  June,  1S51, 
lat  a  meetir  g  of  C6loni  delegates,  presided  over  by  the  presi- 
Ident  of  the  executive  council  of  Canada  and  the  secretary  of 
iNova  Scotia.  The  agreement  was  as  follows:  "Mr.  Howe 
having  called  the  attention  of  his  excellency  and  the  council  to 
the  importance  and  yalue  of  the  gulf  fisheries,  upon  which  for- 
eigners largely  trespass;  a  violation  of  treaty  stipulation,  and 
Mr.  Chandler  having  submittt;d  a  report  of  a  select  committee 
of  the  House  of  Assembly  of  New  Brunswick,  havi-.g  reference 
to  the  same  subject,  the  government  of  Canada  determines  to 
co-operate  with  Nova  Scotia  in  the  efficient  protection  of  the 
fisheries,  by  providing'either  a  steamer  or  two  or  more  sailing 
vessels  to  cruise  in  the  Gulf  of  St.  Lawrence  and  along  the 
coasts  of  Labrador. 

"It  is  understood  that  Nova  Scotia  will  continue  to  employ 
at  least  two  vessels  in  the  same  service,  and  that  Mr.  Chandler 
will  urge  upon  the  government  of  New  Brunswick  the  im- 
portance of  making  provision  for  at  least  one  vessel  to  be 
employed  for  the  protection  of  the  fisheries  in  the  Bay  of 
Fundy.'" 

This  agreement  was  closely  followed  by  a  proposition  from 
the  British  minister  at  Washington  for  reciprocal  trade  either 
through  negotiations  or  mutual  legislation.     The  President  de- 

*- o *'      '    "**'*     ***    '"~    " '    **•* "c*""     '*'  "0"        "'     ~ 

iy=5'i  ''aid:     "Your  attention  is  again  invited  to  the  question  of 

'  Sabine's  Report  on  Am.  Fisheries,  p.  261.  See  also  pp.  274  .277,  (or 
Resolutions,  Addresses,  and  Memorials  to  the  Queen  of  public  meeting 
held  at  Halifax,  Sept.,  185^. 


THE    UNITED    STATES    AND 


reciprocal  -ade  between  the  United  States  and  Canada  and 
other  Britisn  possessions  near  our  frontier.  Overtures  for  a  con- 
ventiviH  upon  this  subject  have  been  received  from  her  Britannic 
Majesty's  minister  plenipotentiary,  but  it  seems  to  he  in  many 
respects  preferable  thit  the  matter  should  be  regulated  by  re- 
ciprocal legislation.  Documents  are  laid  before  you,  showing 
the  terms  which  the  British  government  Is  willing  to  offer,  and 
the  measures  it  may  adopt,  if  some  arrangement  upon  this  sub- 
ject shall  not  be  made." 

The  terms  cITered  were,  if  the  United  States  would  admit 
"all  fish,  either  cured  or  fresh,  impmiied  ffOTTTlln;  BrUlbh  I^urth 
American~^ossessions  m  vessels  ot  any  nation  or  description, 
frpft  of  duty,  and  upon  terms,  in  all  respects,  of  equality"  W^ith 
fishimported  by"ci?izens  ot  the  United  States"  Her  Majesty's 
government  would  "thro  ,v  open  to  the  tishermen^|_the_lJnited 
States  the  fisheries  in  the  waters  of  the  Britjsh  North  Atnerican 
colonies  with  permission  to  those  fishermer.  tu  la..^  on  the  coasts 
of  those  colonies  for  the  purpose  oi  drying  their  nc  s'and  curing 
their  fish,  provided  that,  m  so  doing^jneyLilo  not  intprieie-JK'ith 
the  owners  ot  private  property"orwith  the  operations  ofJBritish 
fishermen."     ' 

The  measures  refrered  to  by  the  President,  which  might  be 
adopted  if  these  terms  were  not  accepted,  were  evidently  those 
provided  for  by  the  Toronto  agreement. 

The  Provinces  took  active  measures  for  the  ''protection"  of  the 
fisheries.  Nova  Scotia  placed  four  fast  sailing  vessels  at  the 
disposal  of  the  Executive.  The  government  of  Canada  sent  a 
vessel  to  cruise  in  the  St.  Lawr<  ce;  New  Brunswick  sent  two 
vessels;  Prince  Edward  Isla  )ne-  In  June  the  colonists 
received  from  Sir  John  Packington,  the  assurance  that  Her 
Majesty's  ministers,  being  desirous  to  remove  all  ground  of  com- 
plaint, on  the  part  of  the  colonies,  therefore,  intended  to  dis- 
patch as  soon  as  possible,  a  small  naval  force  of  steamers,  or 
other  small  vessels,  to  enforce  the  observance  of  that  convention. 

On  the  5th  of  July,  Mr.  Crampton,  who  had  succeeded  Sir 
Henry  BuV./er,  informed  the  President  of  the  action  of  the  Brihsh 

_,  — .       .    .    •••r    1  _.  _^ .. -z  c.-..^    :. 

VJUVCinnieill.       Uaiiici    V»  cDalcr,    Jt-i-itiui^    o-i  .^i-.w,  ;; 


1 

t'"r-"~' 


>  Boston  Courier,  July  19,  1853. 


THE    NORTHEASTERN    FISHERIES. 


7' 


led  at  the  Department  of  State,  reviewed  the  attitude  of  the 
Itish  government  and  fully  set  forth  the  condition  Oi  the  con- 
kersy.  This  paper  attracted  much  attention,  and  on  the  23rd 
fuly.  Mason,  as  chairman  of  the  Committee  on  Forei-n 
^lations,  offered  a  resolution  requesting  the  President  to  commu- 
fate  to  the  Senate,  "if  not  incompatible  with  the  public  inter- 
5,  all  the  correspondence  on  tile  in  the  Executive  department 
the  government  of  England,  or  the  diplomatic  representa- 

fes,  ♦  *  *  and  that  the  President  be  also  requested  t(j  inform 
Senate  whether  any  of  the  naval  forces  of  the  United  States 

Ive  been  ordered  to  the  seas  adjacent  to  the  British  possessions  of 
jrth  America,  to  protect  the  rights  of  American  fishermen, 
ier  the  convention,  since  the  receipt  of  the  intelligence  that  a 

rge  and  unusual  British  naval  force  has  been  ordered  there  to 

Iforce  certain  alleged  rights  of  Great  Britain  under  said  con- 

fcntion." 

I  An   animated  debate   followed   participated    in    by    Mason, 

vard,  Cass,  Hamlin,  and  others,'     The  sending  of  a  naval 

|rce  to  the  fishing  grounds    during  the  negotiations  was,  said 

tr.  Hamlin,  "nothlriglrirrejibr  less  than  to  compel  the  United 

Itates  to  legislate  under  dures^£^_dnd  to  this  he^  for  one,  was 

iwilling  to  submit.'  Mr.  Cass  had  never  before  heard  of  such 
roceedings  as  were  now  adopted  by  England.  No  matter  what 
ie  object  of  the  force  was,  there  was  one  thing  certain, — the 
Lmerican  people  would  not  submit  to  surrender  their  rifhts. 
Che  treaty  was  now  thirty  years  old  and  it  recognised  clearly 
%t  right  of  Americans  to  fish  within  three  miles  of  any  shore. 

Mr.  Pratt  thought  that  England  did  not  want  to  negotiate 
)r  she  had  sent  a  large  force  to  execute  her  construction  of  the 
reaty.     It  was  well  known,  said  Mr.  Seward,  that  any  attempt 

drive  our  fishermen  from  these  fisheries  would  involve  the 
rhole  country  in  a  blaze  of  war. 

Mr.  Rusk  said  that  the  object  of  the  naval  force  was  tobrinj.' 
Iboiit    a  reciprocity  treaty   and   that  the  domineering  spirit  of 

-_!__.!        -,;-.„L}       .,_         1-^       ^i_i i!.. 

'•p^..*'.^     wii^Ili     ivJ     fcJC     (lid      1^1  Will  U>Vt  V* 

The  resolution  pasncd  the  senate  on  the  ijrd  of  July  and  two 
lays  later  Daniel   Webster,  the  Secretay  of  State,  in   1  speech 

Seward's  Works,  vol.  1,  p.  37J. 


7^ 


THE    UNITED    STATICS    AND 


,  r     rod   .t  his  home  in  MarshfieUl,  stated  that  the  administra- 

^"  -^rithei    riC  of  occupation.     They  should  be  protected 
"h  I  and'  nes  :nd  bob  and  sinker."     »  And  why  should  they 
"tT   Thev  Treavastnun^berwho  are  employed  in  that  branch 
,       ..rnrUe      •     ♦     *      There   are  among  you   some, 
°L"":  !»;"'  veK^n  on  .he  GranO  Bank  .or  .o«y  succ.- 
^vev.     There  .hey  have  hung  on  .o  .he  ropes   m  s.orm 
'  d  vvreek.     The  mos.  important  consequence,  are  mvolved  m 
?ht  mltte        Our  fisheries  have  been  the  very  nurser.es  of  our 
„      If  onr  fla..-ships  have  u,e.  an,l  conquered  the  enemy  on 
:h   ';»,  the  fishenes  a^e  a.  the  bot.ont  of  i..     The  flsherie^  were 
the  seeds  from  which  .hese  glorious  .riumphs  were  born  and 
theseea,t     ^     ^    ^he  .reaty  of  tSlSwas  made  with  the  crown 

l^En^land  If  a  fishing  vessel  is  captured  b,  one  of  her  ve». 
Uo.  war  and  carried  to  a  Br  ish  port  for  adju.lcat.on.  the 
crown  of  England  is  answerable,  ..nd  then  we  .now  whom  we 
hav"  .o  deal  with.  But  it  is  not  to  be  expected  ha.  the  Urn  ed 
stltes  will  submit  their  right,  to  be  adjudicated  npon  by  the 
pir  tribunals  of  .he  provinces;  or  .ha.  we  *all  allow  our 
v!"els  .o  be  seized  on  by  cons.aWes  or  Cher  pe..y  officers,  and 
rndlned  by  .he  municipal  cour.s  of  Quebec  and  Newfound- 

'"t  at:ert:re':esoTuUr:t;'he  SenatChe  President  trans- 
mitL"e"l  Kcuments  and  stated  that  a  frigate  had  been  sen. 
to  the  fishing  grounds  -.  for  the  purpose  of  pro.ec,,ng__.he  r,gh.s 
of  American  fishermen  under  ll.e  conven.,on  of  |8.3. 

The  .  eha.c  was  renewetl  n,  .he  Sena.e   soon  after  the  pubh- 

cation  .     the  correspondence  when  Sewar.l  defended  the  Secre- 

lyo    State  from  the  charge  of  having  conceded  too  n,uch,n 

hi.  offical   no.ive.     Mr.  -Seward  said:  -  Now  here  ,s  Mr.  VV  eb- 

..er's  'ancua-e.     Af.er  .(uoring  the  treaty  he  says; 

"  :  'dd"appear  tha,,  by  a  s,r:c>  .ni  ri.ii  ccnUrua^cy/ 
,kH  art.:>.  fishing  vessels  o_.  .he  Un.ted  Mates  are  precluded 
from  entering  into  tlu-  bays,'  &c- 

1818 


And  in  tne  samt- 
♦  It   was 


C«M  I  11^  s 


undoubtedly    an 


:v,rs:ght  in  the  convcnticn  oj 


to  mj.hr 


eir/; 


a  CL>)i<:e 


:sinn  to  England. 


That  is  to  say,  it  wjs  an 


oversight   to   use   language   m 


that 


THE    NORTHEAST£!'.N     MSHERIES. 


73 


Invention  which,  by  a  strict  and  rigid  construction,  might  be 
lade  to  yield  the  freedom  of  the  great  bays.'" 
]The  British  government  now  practically  ceased  to  enforce  its 
Instruction,  and  the  orders  given  to  Sir  Thomas  Hardy  in  i8s2 
kre  merely  to  prevent  the  Americans  from  fishing  within  three 
liles  of  the  shore. 

^  In  1S52  a  convention  referred  various  claims  to  a  commission 
|hich  sat  ir.  London.     Among  these  claims  was  one  for  indem 
Ity  for  the  seizure  of  the   Washington   in   the   Bay  of  Fundv 
rhe  commissioners  disagreed,  but  the  umpire,  Mr.  Joshua  Bates' 
member  of  the  great  banking   house  of  Baring  Bros.,  decided 
at  the  Bay  of  Fundy  was  not  a  British  bay  within  the  meaning 
f  the  treaty  and  that  it  was  open  to  the  American  fishermen  ^ 
The  Canadian  fi,hermen  found  it  difficult  to  contend  ac.ain,t 
he  Ar.Kncan  .3  .tern  of  bounties^  and  the  right  :.  a  free  parti- 
pat.on  m  ihc  American  market  became  an  object  of  prime  im 
Jortance.     Modification-,  in  the  United  States  revenue  laws  were 
Ipposcd  on  the  ground  rhat  the  Canadian  fish  already  monopo- 
Izcd  the  export  trade,*  but  in  January, .S53,  the  Lieutenant-Gov- 
Irnor  of  N  ova  Scotia  was  able  to  report  to  the  assembly :    ^  Vou 
HI   be  pleased  to  learn  that  the  government  of  the  United 
ftates  has  at  length  consented   to   negotiate    on  the  subject  of 
he.r  commerc.al  relations  with  the  British  Empire.    I  shall  re 
D.ce.f  these  negotiations  result  in  the  opening  of  moreextended 
narkets  for  the  productions  of  British  Amenca,  and  the  adiust- 
lert  of  questions  on  which  the  legislatures  of  all  the  provinces 
pave  hitherto  evinced  a  lively  interest." 

'  Canadian  writei7of  the  present  time  claim  that  WVh.^-r      .~~: 
heirco,.truction  of  the  Convention  to  be  the  1    o^c       See     V      "' 
Law  Review,  vol.  n,  p.  369.  *•      ^"  American 

» This  decision  covered  the  whole  ground  and  sus'a.ned  th.    v 
fconstruct<on.     The  Canadian  pamphTet  referred       ''"""'V        '^"''"''"' 
\he  decision  to  have  been  th  a  ihe  ia v    ■  h  ,?  ^  '     '""^^'^P^'^-"*^ 

fan  territor,  at  its  mouther ^^T'o  ^2  r:^;^::7::::'^  ':"■ 

formed  it«  bound*,  a  British  ba^,,  Sic."  territory 

The  Schooner  ^Vn^hln■,.,^., .    l>„ ,  .. 

:.»v,„,i„„  „,  ,8,3;p7,'^;:,y"'-'- "  '""■' -""•.  unJ"  ,h.. 

.™;,:,t,r"  ""'"•'"'  "••  "■«  '^"»'-  ^>e--  "..„ .,  ,^,,  ^„ 

•  Files  of  London  Times,  1853-4. 

♦  Wcb.ter's  Works,  vol.  j,  p.  467. 


74 


THE    UXITPID    oTATES    AND 


THE   RECIFROCITY   TREATY    OF  1854. 

"  To  deal  in  person  is  good,"  wrote  Bacon,  "  wher  a  man's 
face  breedcth  regard,  as  cominonly  with  inferiors;  or  in  tender 
cases  where  a  man's  eye  upon  the  countenance  of  him  who 
speaketh,  may  give  him  a  liirection  how  far  to  go;  and  gener- 
ally when  a  man  will  reserve  to  himself  liberty,  either  to  avow 
or  disavow." 

Lord  Eldon,  Governor-General  of  Canada,  evidently  believ- 
ing that  the  fishery  controversy  had  now  reached  a  point  when 
it  could  with  truth  '  e  called  '  a  tender  case,"  came  to  Washing- 
ton in  1854  for  the  purpose  of  securing  to  Canadian  fishermen 
that  most  desirable  object  —  a  Reciprocity  Treaty.  The  counte- 
nance of  his  lordship  must  have  been  such  as  "breedeth  regard," 
for  in  the  course  of  a  few  weeks,  and  in  spite  of  the  excitement 
then  prevailing  over  the  "Nebraska  Bill,"  he  succeeded  in  bring- 
ing the  negotiations  to  a  successful  termination.  Eldon  became 
very  popular  with  the  Americans,  but  this  popularity  served  to 
rouse  the  suspicions  of  the  people  of  the  maritime  provinces,  who 
charged  that  the  treaty  had  been  "floated  through  on  cham- 
pagne" and  made  a  sharp  but  ineffectual  oppositic  i  to  its  ratifica- 
tion.' 

This  treaty  was  signed  by  Secretary  Marcy  on  the  part  of 
the  United  States  and  by  Lord  Eldon  acting  as  Minister 
Plenipotentiary  on  the  part  of  Great  Britain.' 


'  See  Blackwood's  Mag.  for  Aug.,  18^6. 

»  Treaty  between  Her  Majesty  and  the  United  States  of  America  rela- 
tive to  Fisheries  and  to  Commerce  and  Navigation,  signed  at  Washington 
June  5,  1852. 

The  following  articles  were  admitted  to  either  country  free  of  duty: 

Grain,  flour,  and  breadstuffs  of  ail  kinds;  animals  of  all  kinds;  fresh, 
■moked  and  sailed  meats;  cotton- wool,  seeds,  and  vegetables;  undried 
fruits,  dried  fruits;  fish  of  all  kinds,  products  of  nsh.  and  of  all  other 
creatures  living  in  the  water;  poultry,  eggs;  hides,  furs,  skins,  or  tails. 
undresHed;  stone  or  marble,  m  Its  crude  or  un wrought  state;  slate,  but- 
ter, cheese,  tallow;  lard,  horns,  manures;  ores  of  metals  of  all  kinds; 
coal;  pitch,  tar,  turpentine,  ashes;  timber,  and  lumber  of  all  kinds,  round. 


THE    NOHTHEASTER.V    FI=IIERIES. 


75 


By  the  First  Article,  "It  is  agreed  by  the  high  contracting 
[parties,  that,  in  addition  to  tne  liberty  secured  to  the  United 
,  States  fishermen  by  the  above  mentioned  Convention  of  Octo- 
'ber  20,  1S18,  of  taking,  curing,  and  drying  fish  on  certain  coasts 
!  of  the  British  North  American  colonies  therein  defined,  the  in- 
habitants of  the  United  States  shall  have,  in  common  with  the 
'  subjects  of  Her  Britannic  Majesty,  the  liberty  to  take  fish  of 
every  kind,  except  shell  fish,on  the  sea  coasts  and  shores,  and  in 
the  bays,  harbors  and  creeks  of  Canada,  New  Brunswick,  Nova 
Scotia,  Prince  Edward  Island,  and  of  the  several  islands  there- 
unto adjacent,  without  being  restricted  to  any  distance  from  the 
shore;  with  permission  to  land  upon  the  coasts  and  shores  of 
those  colonies  and  the  islands  thereof,  and  also  upon  the  Mag- 
dalen Islands,  for  the  purpose  of  drying  their  nets  and  curing 
their  fish;  ■provided,  that,  in  so  doing,  they  do  not  interfere  with 
the  rights  of  private  property,  or  with  British  fishermen  in  the 
peaceable  use  of  any  part  of  the  said  coast  in  their  occupancy  for 
the  same  purpose  " 

By  this  treaty  the  American  fishermen  gained  fishing  rights  an- 
alogous to  thos_  enjoyed  under  the  treaty  of  1783,  while  the  Can- 
adians obtained  a  market  for  their  natural  products  free  ot  duty. 

Now  commenced  a  period  of  unexampled  prosperity  for  the 
Canadian  fishery  interests.  The  trade  quaurupled  and  Ameri- 
can fishermen  were  now  received  ou  the  former  inhospitable 
coasts  with  open  arms.  "From  the  making  of  the  reciprocity 
treaty  until  its  abrogation,  Nova  Scotia  increased  in  wealth  and 
prosperity  at  a  most  extra,  linary  rate;  from  its  abrogation 
unnl  the  present,  we  have  retrograded  with  the  most  frightful 
rapidity.'" 


hewed,  and  sawed;  unmanufactured  in  whole  or  in  part;  firewood;  pUn.«, 
shrubs,  and  trees;  pelts,  wool;  fish  oil;  rice,  broom  corn,  and  bark;  gyp- 
sum,  ground  or  unground;  hewn  or  wrought,  or  unwrought  burr  or 
grindstones;  dye  stuffs;  flax,  hemp,  and  tow,  unmanufactured;  unmanu- 
factured tobacco;  rags. 

Treaties  and  Conventions  between  the  United  States  and  other 
Tuwcrs,  pp.  3SJ-4;  Am.  atace  Tap.  (For.  Rei.),  vol.  5,  p.  352;  Philllmore'a 
Int.  Law,  vol.  3,  p.  803.    See  Harper's  Magazine,  vol.  9,  p.  674. 

'  Halifax  Chronicle,  1869,  quoted  in  Cape  Ann  "Advertiser,"  July  2, 
1869.  See  "The  Fishery  Question,"  by  Theodore  S.  Woolsey,  North 
Am.  Rev.,  March,  i886. 


THE    UNITED    STATES    AND 


But  the  American  fishermen  were  not  satisfied  with  thus  con- 
tributing so  materially  towards  buiidinjj  up  the  business  of  their 
competitors  at  the  expense  of  their  own  interests. 

It  soon  became  evident  that  the  loss  of  revenue  irom  the  re- 
mission of  duty  on  Canadian  importat'-'ns  far  exceeded  the  value 
of  the  fishir^^  rights  conceded  to  An  erican  fishermen.  The 
Can'"'iap  fishermen  by  reason  of  their  proximity  to  the  rishing 
ground  and  the  cheapness  of  labor  and  material  for  building 
boats  were  enabled  to  compete  with  the  Americans  to  such  an  ex- 
tent as  to  render  their  business  unprofitable.  The  result  was 
that  in  March,  1S65,  the  treaty  was  terminated  In  pursuance  of 
notice  given  by  the  United  States  one  year  before.' 

All  the  old  contentions  were  now  renewed,  but  the  British 
government  did  not  insist  upon  a  strict  application  of  its  construc- 
tion of  the  Treaty  of  181S,  upon  which  they  were  now  thrown. 
Immediately  upon  the  abrogation  of  the  Reciprocity  Treaty,  the 
Secretary  of  State  for  the  Colonies  instructed  the  Lords  of  the 
Admiralty  that  it  was  not  desired  to  exercise  the  right  to  ex- 
clude American  vessels  from  the  iay  of  Fundy  at  that  time, 
and  that  the  prohibition  to  enter  British  bays  should  not  be  in- 
sisted on  except  where  there  was  reason  to  apprehend  some  sub- 
stantial invasion  of  British  rights.'  The  Canadian  government 
now  resorted  to  the  system  of  issuing  licenses  permitting  the 
American  fishermen  to  use  the  inshore  waters.  The  fee  for  the 
first  year  was  fixed  at  fifty  cents  per  ton,  for  the  second  year 
at  one  dollar,  and  for  the  third  year  two  dollars.  But  the  im- 
portance of  the  inshore  fishing  to  tne  American  fishermen  had 
so  decreased  that  after  a  trial  of  three  years  it  was  announced 
that  no  more  licenses  would  be  issued, — the  plan  having  proved 
a  failure. 

The  following  table,  prepared  by  W.  F.  Whitcher,  the  Can- 
adian Commissioner  9f  Fisheries,  shows  the  amount  of  license 
fees,  and  the  number  and  tonnage  of  American  vessels  availin 
themselves  of  the  privilege.' 


'  Act  of  Cong.,  Jan.  18,  1865,  U.  S.  Laws,  "ol.  13,  p.  566. 
»  H.  R.  Ex.  Doc.  No.  i,  41st  Cong.  3rd  Sf  s. 
*  Award  of  Halltax  Commission,  vol.  i,  p.  217. 


THE     N'ORTIIEA^TEIIN    FISIIEKIES. 


77 


Tonnage,    i  ^mouutof 
'   Uceaaa  fee. 


1866. 

Nova  Scotia 

New  Brunswick 

Quebec 

Prince  Edw  ard  Islanf" 


1867 
Nova  Scotia 
New  Brunswick 
Quebec 
Prince  Edward  Island 


18,779        $9.38950 

26       1         13.00 

5yj        j       296.00 

Si565-58  '    3.339-35 


ib68. 
Nova  Scotia 
New  Brunswick 
Quebec 

I'riiicv,"  Zd'.\;irJ  liland 


1869. 

Neva  Scotia 

New  Brtinswick 

Quebec 

Prince  Edward  Island 


1,266.10   I    2,6i7.8s>i 


Licenses  issued  1S66,  1S67,  1S6S  and  1S69. 


Nova  Scotia. 

688 

4 

136 

35.698 
35 
1.251 
7.5^3-26 

29,299.50 

"II.OO 

New  Brunswick 

I.6I4.00 

6,250.87 

Prince  Edward  Island 

Total 

841 

44.50726 

37.»95-37 

Upon  the  consolidation  of  tlie  several  provinces  into  the  Do- 
minion of  Canada  the  Canadian  Parliament  acquired  jurisdiction 
over  the  sea  coast  fisheries.  Various  laws  were  passed,  of  \vhich 
there  v.ere  in  force  at  the  time  ot  the  treaty  of  Washington  the 
Dominion  Act  of  May  22,  1S6S,  and  an  amendment  thereto  of 
May  10, 1870.    The  principal  provisions  of  the  Act  of  1S6S  were: 

I.  The  Governor  may  grant  iicenses  to  fish  within  three  mfies 
of  the  coast.  2.  Any  one  of  a  n-  nber  of  specified  officers  may 
go  on  board  of  any  vessel  within  any  harbor  of  Canada,  or 
hovering  (in  British  waters)  "ithin  three  marine  miles  of  any 


^ 


f" 


7S 


THE    UNITED    STATES    ANr» 


of  the  coasts,  hays,  creeks,  or  liarhors   in    Laiiada,  and   stay   on 
board  as  long  as  she  may  remain  within  such  place  or  distance. 
3.    If  such  vesse)  shall  he  bound  elsewhere  and  shall  continue 
within  such  harbor  or  so  hovering  for  twenty-four  hours  after 
it  shall  have  been  required  to  depart,  the  clliccr  may   bring  her' 
into  poll,  search    her   cargo,  and   examine  the   master  on  oath 
touching  her  voyage  and  cargo;  if  the  master  do  not  truly  an- 
swer the  questions  put  to  him,  he  shall  forfeit  four  hundred  dol- 
lars; if  the  vessel  be  foreign   and   have  been    found    fishing,  or 
preparing  to  fish,  or  to  have  been  fishing,   within   th  ee   marine 
miles  of  any  of  the  coasts,  bays,  creeks,  or   harbors  of  Canada 
not    included    within    the    above  mentioned  limits,  without   a 
license,  the  vessel,  stores  and  cargo  shall   be   forfeited.      Provi- 
sion is  then  made  for  the  proceedings  upon  seizure. 

The  amendment  of  1670  strikes  out  from  the  third  section 
the  provision  allowing  the  \c-cl  to  remain  within  tlic  harbor 
or  hovering  ioi  iwcnty-fuui  [anin,  after  n(itice  to  depart. 

Under  these  laws  many  American  vessels  have  been  .^ciiicd 
and  confiscated.  The  grounds  therefor  as  stated  in  a  pamphlet 
published  at  Ottawa  in  1S70,'  and  understood  to  be  otHcia!,  are 
as  follows: 

1.  Fishing  within  the  prescribed  limits. 

2.  Anchoring  or  hovering  within  shore  during  calm  weather 
without  any  ostensible  cause,  having  on  board  ample  supplies  of 
wood  and  water. 

3.  Lying  at  anchor  and  remaining  inside  of  bays  to  clean  and 
pack  fish. 

4.  Purchasing  and  bartering  bait  and  preparing  to  fish. 

5.  Selling  goods  and  buying  supplies. 

6.  I.,anding  and  trans-shipping  cargoe,  of  li'4i. 

Such  were  the  claims  of  the  Uritish  Home  and  Colonial  Gov- 
ernments as  incorporated  in  st.itut( -,  and  instructions.'' 


m 


•  Review  of  Prc^lJont  (.rant's  Mcosa},'e  relating  to  Caniuli.ui  Fisheries, 
Ottawa,  1S70,  f.  II.  i"ur  I'ri.i.icnt'-,  Mo. age,  ^.r  H  K\.  J)()t:.  No.  jJ9,4i»t 
Cong.,  jnd  -Soss,  vol.  xi.  In  tiiis  M.-ssaj,-.- the  Trfsiijent  recommended 
that  Congress  grant  to  the  Kxeciilixe  power  to  suspend  the  operation  ot 
the  laws  autliori/iui.;  the  tr.msit  ,,(  e"-  's  jn  boi'd  atrt!-.'-  !>-.;■  t  !•.!!=■.! 
Sf-itei  to  Cnnad.i 

'  Am.  Lavv  Kev.,  vol.  5,  ]>   .jii. 


THE    NORTHEASTEK.N    IISHERIES. 


79 


THE  TREATY   OF   WASHINGTON. 

On  the  8th  of  January,  1S70,  the  Governor-General  of  Can- 
Bila  issued  an  order  "  that  henceforth  all  foreign  fishermen  shall 
be  prevented  from  fishing  in  the  waters  of  Canada."     This  was 
such  a  gross  arid  palpable  violation  of  the  treaty  then  in  force 
Ithat,  on   May  31st,  1S70,  the  Secretary   of  State  called  the  at- 
Itention  of  the  British  Minister  to  the  illegal  order  and  requested 
Jits  mo'lification.     The  negotiations  thus  commenced  resulted   in 
ithe  fishery  articles  of  the  treaty  of   1S71,  known  as  the  treaty 
lof  Washington.     By  Article  XVIII  of  this  treaty,  Article  I  of 
Ithe  Reciprocity    Treaty  of  1854  was  revived  with  the  stipula- 
jtion  that  it  should  exist  for  a  term  of   ten  years  and   for   two 
[years  after  notice  of  its  termination  by  either  party.      By  Arti- 
cle II  of  the  Treaty  of  1854  British  fishermen  had  been  granted 
the  right  to  fish  in    American  waters  down  to  the  thirty-sixth 
parallel.     By  the  Treaty  of  Washington  this  was  extended  to 
the  thirty-ninth  parallel.     By    Article  XXI  it  was  agreed  that 
for  the  term  of  years  stated,  "Fish  oil  and  fish  of  all  kinds  (ex- 
cept  fish    of    the   inland    lakes    and    of  the  rivers  falling   into 
them,  and  except  fish  preserved  in  oil,)  being  the  produce  of 
the  fisheries  of   the   United  States  or  of  the  Dominion  of  Can- 
ada, or  of  Prince  Edward's  Island,  shall   ho   admitted  into  each 
country,  respectively,  free  of  duty."' 

During  the  negotiations  that  led  to  the  Treaty  of  Wash- 
irieton,  the  United  States  offered  one  million  of  dollars  for  the 
inshore  fisheries  in  perpetuity,  rot  because  they  were  of  that 
valut.  but  in  order  to  .ivoid  future  inconvenience  and  .uinoyance. 

'  Tre.ities  and  Conventions  between  the  United  States  and  other 
Powers,  p.  413.  The  Fishery  .\rticle»  of  the  Treatv  of  Washington  are 
printed  in  full  in   the    Froeeedings  of  the    Halifax   Coninil>^ion   of    1S77, 

vol.    !,  p.   XtV 

It  was  hoped  that  the  Fnher^-  question  would  be  placed  at  rest  bv  this 
treaty.  Caleb  Cushlng  wrote  In  187.5,  'We  have  placed  the  quest!..'  of 
the  fishery  on  an  iiidepc-ulent  footin:,'  •  *  •  -ff,e  fi^\■^.  ^y  qucslioi,  i>> 
no  more  to  be  employed  In  the  Doniniion  of  Can.id.i,  n»  It  has  been  hcri  • 
lofore,  cither  as  a  menace  or  a^*  a  lure,  in  the  hope  of  fhu-.  indiicinjj  the 
L'niti'd  St.ite-i  to  revive  the  reciprocitv  ticatv."  Cushitig's  The  Treatv 
0'  Washington,  p.  246. 


.v* 


TICK    UMTKD    STATES    AVD 


1  he  Bnt.sh  Government  .^-.rtinjr  that  the  privilef^es  ac- 
rnnlcd  to  the  dti.cns  of  the  United  States  were  of  greater  value 
fh.m  those  accorded  to  the  citizens  of  Great  Britain,  it  was  pro- 
VHlcd  by  Article  XXII  of  the  Treaty  of  Washington  that 
a  comm.ss.on  should  be  appointed  to  determine  the  value  of 
thr.cadd.t.onnlprivileges,-u  having  regard  to  the  privileges 
accorded  by  the  Un.ted  States  to  the  subjects  of  Her  Britannic 
Majesty." 

hy  Article  XXIII  .t  was  provided  that  one  of  the  Commis- 
,.aners  .ould  be  appointed  by  the  President  of  the  United 
States  .ne  by  Her  Brit.,nnic  Majesty,  and  the  third  by  the 
Prcsulent  of  the  United  States  ana  Her  Britannic  Majesty  con- 
jointly, and  m  case  the  third  commissioner  "shall  not  have  been 
.p  named  within  a  period  of  three  months  from  the  date  when 
th,«  article  shall  take  effect,  then  the  third  commissioner  shall 
be  named  by  the  representative  at  London  of  His  Majesty  the 
Emperor  of  Austria  and  King  of  Hungary 

The  fact  that   the   United   State,,   was   willing  to   leave  the 
dunce  of  the  third  Commissioner  to  the  representative  of  Aus- 
trin  residing  at  London  shows  either  carelessness  on  the  part  --f 
the  Commissioners,  or  sublime  faith  in  human  nature.     Only  a 
few  years  had  passed  since  an  illustrious  member  of  the  House 
of   Hapsburg   had   lost   his   life   in  Mexico  through  fHe  support 
given  the  government  of  President  Juarez  by  the  United  States. 
Thus  to  place  the  fate  of  the  arbitration  in  the   hands  of  one 
who  presumably  did  not  feel  kindly  t.      ards  the   United   States 
was  to  say  the  least,  a  mistake.     Gr,;      Britain  recognized  this 
fact    and    was    swift    to    take    adva.    >,       of    it     She    deter- 
mined   from    the  first  that   no    third    Co, .ssioner   should    be 

cho.cn  within  the  three  months  and  with  this  object  in  view  re- 
sortc.!  to  all  plausible  means  fur  delaying  the  negotiations. 

he  necessary  legislation  having  been  enacted  for  carrying 
the  treaty  into  effect,  Acting  Secretary  of  State  J.  C.  Bancroft 
Davis  urote  to  Sir  Edward  Thornton,  the  British  Minister,  un- 
der date  of  July  7,  ,873,  that  "the  government  of  the  United 
Stalen  ,H  wiirng  to  take  the  initiative  and  suggest  to  Her  Ma- 
jesty h  Government  the  names  of  a  number  of  persons,  each  ,.„. 
o.wnnmwonm,  ,n  the  opi,n„„  of  the  President  he  indiienced 
only  by  a  <iesire  to  do  justice  between  the  parties.     He  then  pro- 


THE    NORTHEASTERN    KISHK  C  ri!-;. 


8i 


posed  th  names  of  the  Mexican  Minister,  the  Russian  Minister, 
the  Brazillian  Minister,  the  Spanish  Minister,  the  French  Min- 
jister  and  the  Minister  of  the  Nctherlan;' ,,  residing  at  Washino-- 
Itcn.  In  the  same  letter  Mr,  Davis  advised  Sir  Edward  that  he 
jhad  "omitted  the  names  of  those  ministers  ^  ho  have  not  the 
jnecessary  familiarity  with  the  English  language"  and  those  who 
|"by  reason  of  the  peculiar  political  connection  of  their  govern- 
jments  with  Great  Britain  would  probably  esteem  themselves 
jdisqualified  for  the  position.  "  ' 

On  the  1 6th  of  July   Sir  Edward   Thornton   replied  that   he 
jhad  forwarded   Mr.  Davis'  letter  to  Lord  Granville.     Nothing 
jfurther  occurred  until   the    19th   of   August,  when  Sir  Edward 
wrote  from   the  Catskill.  recalling  to  Mr.  Fish,  Secretary  of 
State,  a  conversation  he  had  had  with  him  before  leaving  Wash- 
ington, "on  the  subject  of  the  Belgian  Minister,  Mr.  Delfosse, 
being  a  suitable  person  as  third  Commissioner  on  the  Commis- 
sion which  is  to  sit  at  Halifax."     After  admitting  that  Secretary 
Fish  had  refused  to  consider  Mr.  Delfosse,  he  continued  "on  my 
return  home  yesterday  afternoon     *     *     «    i  found  a  telegram 
waiting  me,  in  which  Earl  Granville  desired  me  to  ask  you  in 
\his  name  that  you  would  consent  to  the  app<jintment  of  the 
Belgian  Minister,  who,  as  he  believes,  would  be  in  all  respects 
a  suitable  person  for  the  position.     Indeed,  he  fears  that  if  the 
[two  governments  cannot  come  to  an  agreement,  there  will  be 
I  nothing  for  it  but  tc  leave  the  seie.iicn  to  the  Austrian  Antbassa- 
dor  in  London,  in  accordance  with  the  terms  of  the  treaty." 

Secretary  Fish  was  astounded  at  receiving  this  communica- 
I  tion.  The  Belgian  Minister  at  Washington  was  the  one  person 
regarded  by  his  government  as  totally  ineligible.  Personally 
Delfosse  was  unol.jecti-.nablc,  hut  Belgium  owed  its  political 
existence  to  Great  Britain.  The  Hrst  King  Leopold,  brother  of 
Queen  Victoria's  mother  and  of  Albert's  father,  had  married  a 
daughter  of  the  Prince-Reg.  ,►.  ot  England.  His  son,  Leopold 
n,  was  the  broL.cr  of  Carlotta,  widow  of  the  unfortunate  Max- 
imjllian,  and  cousin    )f  Queen  \'ictoria. 

i  isii  itpiitu  io  Su  Ltiwaru's  note 


r»o  »K.. 


•b"- 


X  r 


'For  this  and  the  followir,'   letters  see   Sen.   Ex.   Doc     No  41  4Cth 
Cong.,  jnd  Scs..  *''*■' 


82 


THE    UNITED    STATES    AND 


expressing  his  surprise  at  the  contenti  and  courteously  st&ting 
that  he  could  not  pursuade  himself  "but  that  the  telegraph  must 
have  made  some  grave  mistake,  either  in  the  transmission  of 
your  communication  to  Lord  Granville  of  the  inability  of  this 
government  to  assent  to  the  selection  of  the  Belgian  Minister, 
or  in  that  to  you  from  his  lordship  proposing  that  gentleman, 
after  being  info  med  of  *  views  of  this  government  with  re- 
gard to  his  selection."  Scjretary  Fish  courteously  thought  the 
probability  of  such  a  mistake  greater  as  Mr.  Davis'  note  was  un- 
answered, and  closed  by  stating  that  if  all  the  gentlemen  pro- 
posed were  unsatisfactory,  others  could  be  named. 

Sir  Edward  replied  on  the  26th  of  August,  ad  vising  Secretary 
Fish  that  "as  the  matters  which  are  to  be  considered  by  the 
Commissioners  deeply  concern  the  people  of  Canada,  it  was 
necessary  to  consult  the  Government  of  the  Dominion  upon  the 
point  of  so  much  importance  as  the  appointment  of  a  third 
Commissioner;  and  some  delay  wrs  therefore  unavoidable.  • 
♦  *  I  have  now  the  honor  to  inform  you  that  Her  Majesty's 
Government  has  received  a  communication  from  the  Goverpor- 
General  of  Canada  to  the  effect  that  >he  government  of  the 
Dominion  strongly  objects  to  the  appointment  of  any  of  the  for- 
eign ministers  residing  at  Washington  as  a  third  Commissioner 
on  the  above  mentioned  Commission,  and  prefers  to  resort  to 
the  alternative,  provided  by  the  treaty;  namely  to  leave  the 
nomination  to  the  Austrian  Ambassador  at  London." 

It  was  now  plain  that  the  British  Government  had  determined 
to  "resort  to  the  alternative."  On  the  6th  of  September  Mr.  Fish 
wrote  to  Sir  Edward  stating  that  as  the  treaty  provided  a  means 
for  selecting  a  third  Commissioner,  and  as  less  than  two  thirds 
of  the  time  had  elapsed,  he  saw  no  reason  to  think  they  could 
not  agree.  "The  reference  in  your  note  to  the  people  and  the 
Dominion  of  Canada  seems  to  imply  a  practical  transfer  to  that 
province  of  the  rij^ht  of  nomination  which  the  treaty  gives  to 
Her  Majesty.  The  President  is  of  tlic  upitiion  that  a  refusal  on 
his  part  to  make  a  nomination,  or  abstinence  on  his  part  from 
effort  to  concur  in  the  conjoint  nomination  contemplated  by  the 
treaty,  on  the  ground  that  some  local  interest  (that  tor  instance 
of  the  fishermen  of  Gloucester),  objected  to  the  primary  mode 
of  filling  the  Commission  intended  by  the  treaty  mij^ht  well   be 


THE    NORTHEASTERN    FISiri;   i::s. 


83 


regarded  by  Her  Majesty's  Government  as  a  departure  from 
the  letter  and  spirit  of  the  treaty;  and  might  justify  it  in  remon- 
strating,  and  possibly  in  hesitating  as  to  its  future  relations  to  a 
commission  with  respect  to  which  he,  as  the  head  of  the  govern- 
ment, and  to  whom,  in  conjunction  with  its  own  sovereign, 
Great  Britain  had  co..imitted  the  right  of  ^selecting  a  member, 
had  delegated  that  right  to  an  interesteo  party,  and  had  there- 
after abstained  from  effort  at  agreement  in  the  mode  of  appoint- 
ment prescribed  by  the  treaty." 

Sir   Edward  now  claimed  that  some  time  previous  he  had 
verbally  proposed  to  Mr.  Fish,  in  a  conversation  held  at  the 
State  Department,  that  the  representatives  of  the  United  States 
and  of  Her  Britannic  Majesty  at  the  Hague  be  authorized  to  se- 
lect "some  Dutch  gentleman"  as  the  third  Commissioner.    But 
as  Secretary  Fish  did  not  appear  to  consider  the  proposal  as 
official,  he  now,  on  September  24th,  renewed  it.     This  propo- 
sition was  declined  by  Secretary  Fish  on  the  ground  that  it  was 
not  the  method  provided  for  by  the  treaty  which  had  received 
the  constitutional  assent  of  the  Senate.     Again,  on  the  3rd  of 
October  Mr.  Fish  addressed  Sir  Edward  reviewing  the  entire 
correspondence,  and  quoting  from  a  diary  his  memoranda  of 
tho  conversation  about  the    Dutch  gentleman.      "I  told    him 
[Sir  Edward  Thornton]  that  I  must  frankly  say  that  I  con- 
sidered the  proposition  as  one  intended  to  be  rejected  in  order 
to  throw  the  appointment    on    the   Austrian    Ambassador   at 
London." 

Secretary  Fish  also  wrote  in  this  letter: 

"The  name  of  the  Belgian  Minister  was  omitted  from  the 
list,  although  the  President  felt  entire  confidence  that  the  great 
intelligence  and  high  cluaacter  and  inlegritv  of  Mr.  Delfosse 
well  fitted  him  for  the  position.  The  omission  was  designedly 
made  in  consc  luence  ot  what  had  taken  place  in  the  Joint  High 
Commission  when  the  subject  of  the  selection  of  arbitrators  for 
the  Geneva  tribunal  was  under  discussion.  I  find  on  referrin<r 
to  a  diary  of  the  proceedings  of  that  Commission,  written  at 
tiic  dose  of  each  day,  that  on  the  5th  of  April,  1871,  Lord  de 
Grey  said  'that  he  could  name  several  heads  of  States,  any  one 
of  whom  would  be  acceptable  to  Grt.it  D 
Nel 


ritain;'  that  Jud 
son  said,  'suppose  you  name  some,'  and  that  '  Lord  ile  G 


sre 


•ey 


84 


THE    UNITED    STATES    AND 


named    the    sovereigns    of     Italy,    Holland,     Spain,    Swcdct 
Switzerland,  Austria,  and  Denmark;  he  said   he  did  not 


name 

(Bjlgium  -  'Porttigal  becav.se  Great  'Sriiian  had  treaty  arrange- 
ments with  both  of  ther/i  that  might  be  sv.fposed  to  incapacitate 
them:'' 

On  the  4th  of   October  Sir    Edward    replied,  declining   to 
continue  the  argument.     On  the  24th  of  October  Sir  Edward 
advised  Mr.  Fish  that,  as  the   three   months  had  expired.  Her 
Majesty's  Government  considered  that  the  appointment  rested 
with  the  representative  of  the  Empororof  Austria  in    Lond'  - 
Mr.  Fish  replied,  arguing  against  the  theory  that  the  power  or 
-    selection  had  passed  beyond  the  Ui  Ited  States  and  Great  Brit- 
ain.    But  Sir  Edward  replied  that  he  had  been  instruc.od  by 
Earl  Granville  "to  assure  you  that  if  it  had  been  possible  Her 
Majesty's  Government  -vculd  have  been  glad  to  have  met  the 
views  of  the  government  of  the  Uv.itcd  States  i:i  this  r.tatt  ;-  but 
that  after  consulting  with  the  proper  law  officers  of  the  crown 
it  is  of  opinion  that  the  terms  of  the  xxiii  Article  of  the  Treaty 
;.  of  Washington  are  distinct  and  peremptory,  and  that  the  ap- 
pointment of  the  third  Commissioner  now  devolves  upon  the 
^Austrian  Ambassador  at  London." 

The       idition  of  atfairs  was  now  such,  as  in  the  opinion  of 
the  British  Government,  to  justify  an  attempt  to  gi,  -al 

object  of  their  desire- -a  P.eciprocity   Treaty.     At.  jest 

the  negotiations  were  suspended,  and  a  special  agenl  was  sent 
to  Washington  to  assist  Sir  Edward  Thornton.  The  attempt 
proved  successful  as  far  as  the  Executive  power  could  go.  Mr. 
Fish  agreed  to  a  treaty  but  it  was  defeated  in  the  Senate.  Ac- 
cording to  Sir  Edwani  it  was  now  important  "that  no  time 
should  be  lost  in  proceeding  to  ascertain  the  compensation  due 
to  Canada." 

As  further  opposition  would  be  liable  to  do  more  harm  than 
good,  Mr.  Fish  informed  Sir  Edward  that  the  United  States 
would  interpose  no  obstacles  to  the  selection  of  the  third  com- 
missioner by  the  Austrian  Ambassador. 

Count  Benst,,  the  Austrian  Ambassador  appointed  M.  Maurice 
-vii-.-r -V,  iij,.  ijc:j;:aii   i-.tiiiiMcr. '      i  Ph.:   <..uiiniiissioucrs  met  at 


>  Pre9.  Message,  Jun-  17,  187H.     Sen.  Ex.  Doc.  No.  100,  4Stli  Cong.,  and 
Sess,     In  response  to  Resoliition  o£  May  27,  1S78. 


THE    NOKTMi:.'.>  ,  [.1{.\    FISHEKIES. 


8« 


Halifax  on  the  5th  of  June,  1S77.  The  United  States  wa,  rep- 
resented on  the  Commission  by  Hon.  E.  II.  Kello"-o-,  of  Mass- 
achusetts, and  Great  Britain  by  Sir  Alexander  F.  Gault,  of 
Canada.  Francis  Clare  Ford  was  the  British  agent  and  Dwi'^ht 
Foster,  of  Massachusetts,  assisted  by  William  II.  Trescott,  of 
South  Carolina,  and  RicI-'^-rJ  rl.  Dana,  Jr.,  of  Massachusetts 
represented  th  .•  United  States. 

The  case  was  elabora.ciy  argued  on  both  '-.ides.  The  United 
States  contended  that  the  duty  of  the  Commission  was  limited, 
and  that  it  w.i^  ciiarged  with  the  decision  of  no  political  or 
diplomatic  qu  'ens;  that  all  such  questions  had  been  deter- 
mmed  by  the  .nt  ni','h  Commission  and  that  the  Halifax 
Commission  was  for  the  -impL-  purpose  of  an  accounting-  in 
order  to  determu  a  how  •lU.^h  more  valuable,  if  any,  the  Cana- 
dian fisheries  were  to  ti-ie  citizens  of  the  United  States  than  the 
United  States  fisheries  were  to  the  citizens  of  Canada;  that  the 
value  of  the  inshore  fisheries  was  simply  their  value  as  ..ir.ck- 
erel  fisheries  and  that  to  estimate  one- fourth  oT  the  entire 
mackerel  catch  as  coming  from  within  ihore  v/as  a  libera!  al- 
lowance and  that  the  re:  .ission  of  duty  on  fish  a  lU  fish  oil, 
a'dmittcd  to  be  worth  three  hundred  fifty  thousand  dollars  a 
year,  was  an  equivalent. 

"In  presenting  the  British  case,"  says  Mr.  Blame,  "cv.-ry 
consideration  was  put  forward  by  the  clever  mer  ,ho  repre- 
sented it,  to  magnify  the  cdi. cession  made  to  the  U  .ted  StUes. 
They  dwelt  at  great  length  upon  the  thousands  of  m'Ics  of 
coast  thrown  open  t..  Americans;  upon  the  fabulous  wealth  of 
the  fisheries,  where  every  one  c;  ught  had,  like  ilie  fish  of  'he 
miracle  in  Scripture,  a  bit  of  money  in  its  mouth;  „p<  <\  he  Tact 
that  the  chief  resource  and  \.iriety  of  fishing  lay  within  tlie 
three  mile  limit.  They  nviiKiged  to  conceal  the  re.ii  i-snc  I>v  a 
mass  of  statistics. "- 

The  award  was  not  made  until  tiie  .'3rd  of  NOvcinlur,  '*Sv^/, 
when,  by  a  \  ote  ui  !\v(>  to  one,  tl;     Cuiiimissioni  r^  <icci.!<.l  that 


'  Plainc'n  "Twenty  Ye.iri<  of  Congress,"  vol.  :,  p.6j3.  For  the  f  jll  pro- 
ceeding;'; of  tiu-  Coinmi>>i<)n  ^t•c  Uv.use  Ev.  Doc.  No.  ^<),  4<;ih  Cng.,  jnd 
^c»s.,  J  volumes,  tran-iinlttei]  whh  1'rei.iiknt's  Ntess.i-c  of  M  iv  17,  187S. 
A»tochar)(es  of  fr.uul  in  pnulucinj;  evidence  before  tlie  Comnu^sinn  kit 
Hon, c  Rep  No  3:9,  4MI1  Con){  ,  Jnl  Scs  Ttu-c  ch.irj;es  were  ni.uie 
against  the  British  agent  hv  a  C.uiadi.m  expert. 


86 


rHK     UMTKH    STAIKS    A*l> 


the  UnitcJ  Stato  ua.^  to  pay  five  niiUion  five  huiulrcd  thousand 
dollars  for  the  use  of  the  fishi.ig  privileges  for  twelve  years. 
The  decision  produced  profound  astonishment  in  the  United 
States. 

On  the  nth  of  March,  1S7S,  Mr.  Blaine  moved  a  resolution 
in  the  Senate  calling  for  the  correspondence  relating  to  the 
appointment  of  the  third  Commissioner.  On  the  lyth^of  May 
President  Hayes  sent  the  correspondence'  to  the  Senate  with  a 
recommendation  that  Congress  appropriate  the  sum  necessary 
to  pay  the  avvard,  leaving  its  payment  to  the  discretion  of  the 
Executive  Department. 

The  question   was   rcf'-.red    to   the   Committee  on    Foreign 
Relations.    On  the  ^Sth  of  May,  Hannibal  Hamlin,  as  Chairman, 
reported   in   favor  of  the  payment  of   the  avvard,  but   protested' 
against  its  justness  and  validity.'     "Boards  of  arbitration,  like 
judicial  courts,  are  restrained  in  their  judgments  and  awards  by 
ihe  jurisdiction  that   is  conferred  upon  them.     If  an  interna- 
.  tional  board  of  arbitration  transcends  its  jurisdiction,  and  pro- 
ceeds  in  any  respect  u:ira  vires,  there  is,  of  course,  no  appeal  to 
interpose  as  a  corrective  except  to  that  of  the  justice  and  honor 
of  the  nations  interested.     However  .much,  then,   we   may    re- 
gard the  award  made  at  IFalifax   as  excessively  exorbitanc,  and 
possibly  beyond  the  legal  and  proper  powers  of   those    making 
it,  your  committee  would  not  recommend  that  the  Government 
of  the  Uniied  States   disregard   it,  if   the  Government   of    Her 
Britannic  Majesty,  after  a  full  review  of  all   the  facts  and   cir- 
cumstances of  the  case,  shall  conclude  and  declare  the  award 
to  I  e  lawfully  and  honorably  due. 

It  the  unfailing  power  of  self-interest  may  be  feared  as  a 
force  tending  to  a.i  opposing  side,  we  must  remember  that  in 
the  other  direction  no  nation  is  more  vitally  interested  than 
Great  Britain  in  unholding  and  maintaining  the  principle  and 
practice  of  international  arbitration;  anil  tqi-  intelligence  and 
virtue  of  the  British  statesman  cannot  fail  to  suggest  that  arbi- 
tration can  only  be  retained  as  a  fixed  mode  of  adjusting  iiit-rna- 
tional  disputes  by  demonstrating  its   eiriciency    as  a   rnethod  of 


•  «en.  Ex.  Doc.  No.  44,  45fh  Conp.,  ind  Sesv 
'  Sen.  Rep.  No.  439,  45th  (Jung.,  2i\d  Scss. 


THE    NORTHEASTEKN    KISHflRIES. 


87 


securing  mutual  justice,  and  thus  assuring  that  mutual  content, 
without  'vhich  awards  and  verdicts  are  powerful  only  for  mis- 
chief. In  the  spirit  of  this  suggestsion  your  committee  beg 
leave  to  call  attention  to  several  features  of  the  award," 

The  first  of  these  "features"  was  the  fact  that  the  yward  was 
made  by  two  of  the  Commission  when  it  should  have  been 
unanimous;' second,  that  the  amount  awarded   was  exorbitant. 

The  customs  receipts  for  the  four  lull  years  from  1873  to  1877^ 
showed  that  the  United  States  had  remitted  duties  on  fish  amount- 
ing to  three  hundred  fifty  thousand  dollars  a  year,  and  that 
adding  this  to  the  award  it  was  equivalent  to  almost  ten  mil- 
lion dollars  for  the  use  of  the  inshore  fisheries  for  twelve  years, 
while  they  were  not  worth  more  than  twenty-five  thcjusand  dol- 
lars a  yeai.     Notwithstanding  these  facts  the  Committee  recom- 


i  It  was  undoubtedly  the  intention  of  the  two  nations  that  a  unanimous 
award  only  should  be  accepted  as  valid.  In  advance  oi  tne  organization 
of  the  Comnjission  it  was  declared  by  M-  Black,  in  the  Dominion  Par- 
liament, "that  the  amount  of  compensation  that  we  would  receive  from 
our  fisheries  must  be  an  amount  unanimously  agreed  upon  by  the  Com- 
missioners, and  that,  therefore,  we  must  be  willing  to  accept  such  com- 
pensation as  the  American  Commissioner  would  be  willing  to  concede  to 
us,  or  we  should  receive  nothing." 

On  July  6,  1877,  the  London  Times  announced  in  th"  most  unqualified 
terms,  that,  "on  every  point  that  comes  before  it  (the  Commission)  for 
discussion,  the  unanimous  consent  of  all  Us  members  is,  by  the  ttrrns  of 
the  treaty,  nec<:8sary  before  an  authoritative  vordict  can  be  given."  See 
article  by  Senator  Edmunds,  N.  A.  Rev.,  vol.  128,  p.  i.  It  seems  to  us 
that  th-  Halifax  Award  was  illegal  as  being  that  of  a  majtrity  only  when 
the  instrumen.  of  their  appointment,  considered  in  the  light  of  all  its 
parts,  required  u  animity.  Lord  Salisbury  cLimed  his  position  to  be 
based  on  the  rules  of  Liternatlonal  law,  and  cited  Halleck  as  follows: 
"The  following  rul-s,  usually  derived  from  the  civil  law,  have  been  ap- 
plied to  international  arbitration,  when  not  otherwise  provided  in  the 
articles  of  reference.  If  there  be  an  uneven  number  the  decision  of  the 
majority  Is  conclusive." 

Heffttr,  the  only  writer  cited  by  llalleck.  states  how  and  when  such  a 
rule  is  applied  He  says:  (Bergson's  Ed.,  translation  of  ird  German  Ed. 
LIvre  dcuxieme,  ch  1,  sec.  109.)  "  Lorsquc  plusieurs  arbitres  ont  ^t< 
nommrfs,  sans  que  leur  fonction  rc'ipcctlvt  alent  «5t<i  determinee  d'avanre, 
iU  ne  peu-'cnt,  suivant  I'intcntitHi  presumee  des  parties,  proc^der  sep- 
arrfmcnt.  Encore  de  dc^accord  entre  eux,  I'av  is  de  'a  majorite  Uoit  preva- 
loir  conform<«inent  aux  princlpcs  de  la  pio«:di!jrc  ordinaire."  Sec  article 
by  Sen.  Edmiiiid*,  supra. 


ss 


THE    UNITED    STATES    AND 


mended  the  payment  of  the  award  if  Great  Britain  was  willing 
to  acxept  it. 

On  a  motion  to  approve  the  report  of  the  Committee,  Senator 
Edmunds  offered  an  amendment  declaring  that  "Article  XVIII 
and  XXI  of  the  Treaty  between  the  United  States  and  Great 
Britain  concluded  on  the  Sth  of  May,  1S71,  ought  to  be  termin- 
atetl  at  the  earliest  period  consistent  with  the  provisions  of  Arti- 
cle XXXIII  of  the  same  treaty."  This  was  adopted  and  the 
money  necessary  to  pay  the  award  was  appropriated, 

In  a  dispatch  of  the  27th  of  September,  1S78,  Secretary  Evarts 
presented  the  arguments  against  the  validity  of  the  award.  Lord 
Salisbury,  while  admitting  that  the  arguments  of  Mr.  Evarts 
were  powerful,  declined  to  answer  them,  and  the  award  was 
paid  the  day  it  was  due.' 

It  is  a  curious  fact  that  during  the  time  intervening  between 
the  signing  of  the  treaty  of  Washington  and  the  Halifax  award 
an  almost  complete  change  took  place  in  the  character  of  the 
fisheries.  The  method  of  taking  mackerel  was  completely  re- 
volutionized by  the  introduction  of  the  purse-seine,  by  means  of 
whirh  vast  quantities  of  the  fish  were  captured  far  out  in  the 
open  sea  by  enclosing  them  in  huge  nets.  Formerly  they  were 
taken  solely  with  hooks  by  what  was  called  the  "chumming" 
process.  The  purse-seine  was  first  used  in  1850,  but  it  is  only 
since  1870  that  its  use  became  general.  A  few  vessels  used  the 
old  apparatus  as  late  as  1S74.  This  change  in  the  method  of 
fishing  brought  about  a  change  in  the  fishing  grounds.  The 
old  style  of  fishing  was  most  successful  in  the  Gulf  of  St.  Law- 
rence, but  the  purse-seine  can  be  used  with  better  advantage 
along  our  own  shore.  The  result  of  this  change  was  very 
greatly  to  diminish  the  value  of  the  Northeastern  Fisheries  to 
the  United  States  fishermen. 

During  the  continuance  of  the  Treaty  of  Washington  Amer- 
ican fishermen  were  driven  from  Fortune  Bav,  Newfoundland, 
by  a  mob,  for  fishing  on  Sunday  in  contravention  of  a  local 
statute.  The  question  arose  as  to  how  far  treatv  rights  were 
affected  by  local  laws  and  rei^uhitions.  All  acknowlrdirod  that 
the  treaty   obligations  were  supreme,  hut   Lord   Granville  con- 


'  See  the  Nation,  vol.  26,  pp.  175,  3^>6;  vol.  37,  pp.  278,  29J. 


THE    NORTIIKASTERN    FISHERIES. 


89 


tended  that  the  treaty  was  made  subject  to  such  local  kw.  as 
affected  all  parties  alike,  but  that,  as  a  matter  of  international 
obligation,  local  laws  at  variance  with  the  treaty  should  be  re 
pealed.  Secretary  Evarts  replied  that  such  a  rule  would  render 
the  treaty  rights  useless  and  justify  the  renewal  of  the  duty  on 
fish.  "This  Government  conceives  that  the  fishery  rigats  of  the 
United  State.,  onceded  by  the  Treaty  of  Washington,  are  to  be 
exerased  wh.  free  from  the  restraint  and  regulations  of  the 
statutes  of  N.  ..diand,-  and  that  for  any  provincial  inva- 

s.ons  of  such  :         ,  Great  Britain  would  be  held  responsible.' 

The  Fortune  Jay  affair  was  settled  by  Great  Britain  paying 
to  the  United  btates  the  sum  of  X  15,000  damages  and  thcadop 
tion  of  certain  rules  to  prevent  future  trouble.' 

In  pursuance  of  instructions  from  Congress'the  President  gave 
the  required  notice  of  the  desire  of  the  United  States  to  ter 
minate   the  Fishery   Articles  of   the   Treaty  of   Washington, 
which  consequently  came  to  an  end  the  ist  of  July,  1885.* 


f|| 


1 


TEMPORARY  DIPLOMATIC  ARRANGEMENT. 

The  termination  of  the  treaty  fell  in  the  midst  of  the  fishing 
season  and  at  the  suggestion  of  the  British  Minister,  Secretary 

iTrL    ,7     "'°  '  ''"''"'''''  arrangement  whereby  the 
American  fishermen  were  allowed  the  privileges  of  the  treaty 
dunng  the  remainder  of  the  season,  with  the  understanding   hi' 
he  President  should  bring  the  question  before  Congress  at  it 
next  session  and  recommend  a  joint  Commission  by  the  Gov 
ernmen..  of  the   United  State,  and  G^eat  Britain   oconller 

Cong^'nTsc!."''"'"^'"'  ""^  '''  '"*•  "°"**  ^^-  ^oc.  No.  84,46th 


90 


THr.    UNITED   STATES   AND 


intercourse"  between  the  two  countries,  "  thus  affording  a  pros- 
pect of  negotiation  for  the  development  and  extension  of  trade 
between  the  United  States  and  British  North  America."'  In 
his  message  of  the  5th  of  December,  1885,  President  Cleveland, 
premising  that  "in  the  interests  of  good  neighborhood  and  of 
the  commercial  intercourse  of  adjacent  communities,  the  question 
of  the  North  American  Fisheries  is  one  of  much  importance  " 
recommended  a  commission  "charged  with  the  consideration 
and  settlement,  upon  a  just,  equitable  and  honorable  basis,  of 
the  entire  question  of  the  fishing  rights  of  the  two  govern- 
ments."* 

But  Congress  did  not  approve  of  this  method  of  procuring  a 
surcease  of  sorrow  for  the  fishermen.  The  fishermen  them- 
selves petitioned  Congress,  earnestly  protesting  against  a  Com- 
mission and  asserting  that  they  were  satisfied  with  the  rights 
guaranteed  them  by  the  existing  treaty.  The  country  evidently 
did  not  want  a  Commission  and  the  Senate  by  a  vote  of  35  to 
10  passed  a  resolution  declaring  that.it  was  not  advisable  to  sub- 
mit the  question  to  a  joint  commission. 


tiiei^ 


PRESENT      fATE  OF  THE  QUESTION. 

The  Act  of  1868  for  the  protection  of  the  fisheries  even  as 
amended  in  1870,  was  not  sufficient  to  give  color  of  law  to  the 
enforcement  of  the  terms  of  the  treaty  as  understood  by  Can- 
ada. The  vessel  and  cargo  could  be  forfeited  only  on  proof  of 
the  offense  of  fishing,  or  having  been  found  to  have  fished,  or 
preparing  to  fish,  on  the  prohibited  coasts.  In  order  to  supply 
this  de^ciency  and  enable  the  authorities  to  forfeit  the  vessels 
and  cargoes  of  the  deep  sea  fishermen  who  entered  under  per- 
mits  to  "touch  and  trade,"  the  Act  of  1886  was  passed.' 


«  Agreement  between  the  United  States  and  Great  Briuin  respecting 
the  Ssheries,  concluded  June  33,  1885,  H.  R.  Ex.  Doc.  No.  19,  49th  Cong., 
and  bess.,  p.  199;  Sen.  Ex.  Doc.  No.  33,49th  Cong.,  ist  Sess.;  Foreign 
Rel.  U.  S..  1885,  pp.  460,  469. 

>  Foreign  Relations  U.  S.,  1885. 

*  An  Act  to  further  amend  the  Act  respecting  fishing  by  foreign  ves- 
•eU,  49  Vic,  cap.  IJ4;    Reserved   by    the    Governor-General  on   Wed- 


NORTHEASTERN    FISHERIES. 


9X 


vhe 


Dunr 
a  course      . ' 
— a  ne  / let 
Govern  aenf- 
plicabilii     r 


.^on  of  i8S6  the  Canadian  authoritier,  pursued 
'apted  to  lead  to  the  end  they  so  much  desired, 
city  treaty.  Notwithstanding  the  t  ict  that  th^' 
>*  the  United  States  en,phat:cally  denied  the  ap- 
jcal  customs  regulations  to  the  case  of  the  fish- 
ermen pursuing  their  occujation  under  the  protection  of  the 
treaty  of  1818,  the  Canadians  persisted  in  enforcing  their  con- 
struction of  the  treaty  with  reckless  and  uncalled  for  sever- 
ity;  even  to  the  extent  of  refusing  to  sell  articles  of  food  to 
the  captain  of  an  American  tishing  vessel  who  had  exhausted 
his  supply  by  rendering  assistance  to  the  starving   crew   of   a 


nesday,  June  2nd,  1886,  for  the  signification  of  the  Queen's  pleasure; 
Royal  assent  given  in  council  the  26th  of  November,  i886;  Prociaraa-* 
tion  thereof  made  24th  of  December,  1886.  This  Act  provided  that: 
"Whereas  it  is  expedient  for  the  more  effectual  protection  of  the 
Inshore  fisheries  of  Canada  against  intrusion  by  foreigners,  to  further 
amend  the  act  entitled  'An  act  respecting  fishing  by  foreign  vessels,' 
passed  In  the  thirty-first  jrear  of  Her  Majesty's  reign,  and  chapter  61 : 

Therefore,  Her  Majesty,  hy  and  with  the  advise  and  consent  ol  the 
Senate  and  House  of  Commons  of  Canada,  enacts  as  follows: 

I.  The  section  substituted  by  thu-  rst  section  of  the  act  thirty-third 
Victoria,  chapter  ifi,  entitled  An  act  to  amend  the  act  respecUng  filh- 
ing  by  foreign  vessels,'  for  the  third  section  of  the  hereinbefore  recited 
act,  is  hereby  repealed,  and  the  following  section  subsUtuted  in  lieu 
thereof: 

3.    Any  one  of  the  oflScers  or  persons  hereint  '^re  menUoned  may 
bring  any  ship,  vessel,  or  boat,  being  within  any  harbor  )f  Canada,  or 
hovering  in  British  waters,  within  three  marine  miles  of  any  of  the  coasts, 
bays,  creeks,  or  harbors  in  Canada,  into  port  and  search  her  c^rgo,  and' 
mav  also  examine  the  master  upon  oath  touch! r-g  the  cargo  and  voyage; 
and  if  the  master  or  person  in  command  does    not  truly  answer  the 
questions  put  to  him  in  such  examination,  he  shall  incur  a  penalty  of 
$400;  and  if  such  ship,  vessel,  or  boat  is  foreign,  or  net  navigated  ac- 
cording to  the  laws  of  the  United  Kingdom  or  of  Canada,  and  ^a)  has 
been  found  fishing,  or  preparing  to  fish,  or  to  have  been  fishing  in  Br' 
ish  waters  within  three  marine  miles  of  any  of  th;  -casts,  bays,  creeks, 
or  harbors  of  Canada,  not  included  within  the  above-mentioned  limits, 
without  a  license,  or  after  th-  eznlration  of  the  'errr.  na-v.pr!  ?r.  »h.-  !si» 
license  granted  to  such  shl:\  vessel,  or  boat  under  the  first  section  of  this 
act,  or,  (b)  has  entered  such  waters  for  any  purpose  not  permitted   by 
treaty  or  co^venti'.n,  or  by  any  I-  vs  of  the  United  Kingdom  or  Canada, 
for  the  time  being  tn  force,  such  ship,  vessel,  or  boat,  and  the  tacLle, 
"■'ggJng,  apparel,  fu;  nlture,  stores,  and  cargo  thereof  shall  be  forfeited." 


92 


THE    UNITED    STATES    AND 


wrecked  Canadian  boat.  Many  American  vessels  were  seized, 
warned,  or  molested  in  such  manner  as  to  '  reak  up  their  voy- 
ages and  entail  heavy  loss  upon  the  owners.' 

These  seizures  and  the  constant  complaints  of  the  fisliermen 
led  to  an  elaborate  correspondence  between  the  two  <^overn- 
rnents."     In  order  to  justify  their  acts,  the  Canadian  aut°horities 
resort  to  a  very  strict  and  literal  interpretation  of  the  lan-ua-^e 
of  the  convention  of  i8iS,  and  assume  the  power  tc  enac"  leg- 
islation for  the  purpose  of  construing  a  contract  entered  into 
by  the  Imperial  Government,  »'an  assumption  of  jurisdiction 
entirely^unwarranted  and  which  is  wholly  denied  b-  the  United 
States."'     They  also  deny  to  the  fishing  vessels  any  commercial 
privdeges,  thus  assuming  the  right  to  decide  upon  the  efficacy 
of  permits  to  "touch  and  trade,"  issued  by  properly  qualified 
officials  of  the  United  States,  on  the  ground  that  to  allow  fishing 
vessels  to  enter  thf  harbors  under  such  permits  would  in  cffec't 
operate  as  a  repeal  of  the  restrictive  clauses  of  the  treaty.* 

•For  list  of  vessels  see  Sen.  Rej..  No.  1683,  ^h  Cong.,  2nd  Sess.;  H. 
R.  Ex.  Doc.  No.  19,  49th  Cong.,  2nd  Sess.  List  of  New  England  vessels 
involved  in  controversv  v^ith  Canada,  furnished  bv  Commissioner  of 
Fish  and  Fisheries,  Jan.  26,  18.S7,  Sen.  .Mis.  Doc.  S4,  49th  Cong.,  2nd 
bes8.  Rev.seu  list,  Jan.  27,  .8S7,  Son.  Ex.  Doc.  No.  .5.  4"th  Cong,.  2nd 
Sess.;  H.  R.  Report  No.  4087,  49th  Cong.,  2nd  Sess..  Appendix  C 

H.  R.  Ex.  Doc.  No.  .9,  49th  Cong..  2nd  Sess.  Accompanying  this 
correspondence  will  also  be  found  the  Cinadi.in  Customs  Acts'  47  Vic 
cap.  29,  assented  -o  April  ,9,  ,884;  46  Vic,  cap.  -2.  assented  to  M..v  25' 
1883,  and  an  analytical  index  for  use  of  the  customs  officials.  See'aKo' 
copy  of  the  "Warning"  signed  by  George  E.  Fisher,  Minister  of  Marine 
and  Fidheri..s.  on  page  39  of  this  document. 
»  Mr.  Bayard  to  Sir  L.  West,  May  29,  18S6 

♦The  Canadian  contention  is  shown  by  thi  tollowing  official  utterances: 
Or.  June  5.  18S6.  the  Canadian  minister  of  marine  and  fisheries  declared  ■ 
"It  appears  the  Jennie  and  Julia  is  a  vessel  of  .ibout   14  tons  register 
that  .he   was  to  all  intents  and  purposes  a  fishing  vessel,  and.  at  the  time' 
of  her  entry  into  the  port  of  Digby,  had  fishing  gear  and  apparatus  on 
board,  and  that  the  collector  fully  satisfied  himself  on  these  facts      Ac- 
cording to   the   master's  declaration,   she   was    there   to   purchase   fresh 
herring  or.Iy,  and  wished  to  get  t..em  direct  from  the  weir  fishermen.  The 
collector,  upon  his  conviction  that  she  was  a  fishing  vessel   and   as  su  h 
debarred  by  the  treaty  of  .8.8  from  entering  Canadian  ports  for  the  pur' 
po.e  of  trade,  therefore.  In  the  exercise  of  his  plain  duly,  warned  her  off 
"The  treaty  of  1818  i.  trpliclt  lu  iu  terms,  and  by   it  United  .Stat.. 


THE    NORTHEASTERN    FISHERIES. 


93 


The  United  States  Government  claims  that  the  Treaty  of 
l8iS  related  solely  to  the  fishing  rights  of  American  vessels 
on  the  British  North  American  coasts,  ana  that  it  in  no  way 
affects  their  commercial  rights;  that  a  vessel  may  b.      fisher 


fishing  vessels  are  allowed  to  enter  Canadian  ports  for  shelter,  repairs, 
wood  and  water,  and  'for  no  other  purpose  whatever.' 

"The  undersigned  is  of  the  opinion  that  it  cannot  be  successful!;-  con 
tended  that  a  bona  fide  fishing  vessel  can,  by  simply  declaring  her 
intention  of  purchasing  fresh  fish  for  other  tlian  baiting  purposes,  evade 
the  provisions  of  the  treaty  of  1818,  and  obtain  privileges  not  c'ontem- 
plated  thereby.  If  that  were  admitted,  the  provisions  of  the  treaty  which 
excludes  United  States  fishing  vessels  for  all  purposes  but  the  four  above 
mentioned  would  be  rendered  null  and  void,  and  the  whole  United  Stales 
fishing  fleet  be  at  once  lifted  out  of  the  category  of  fishing  vessels,  and 
allowed  the  free  use  of  Canadian  ports  for  baiting,  obtaining  supplies, 
and  trans-shipping  cargoes. 

"  It  appears  to  the  undersigned  that  the  question  as  to  whether  a  vessel 
is  a  n.hing  vessel  or  a  legitimate  trader  or  merchant  vessel  is  one  of  fact 
and  to  be  decided  by  the  character  of  the  vessel  and  the  nature  of  her 
outfit,  and  that  the  class  to  which  she  belongs  is  not  to  be  determined  by 
the  simple  decoration  of  her  master  that  he  is  not  at  anv  given  time 
acring  in  the  character  of  a  fisherman. 

"At  the  same  time  the  undersigned  begs  again  to  observe  that  Canada 
has  no  desire  to  interru:n  the  long-established  and  legitimate  .  .mmercial 
intercourse  with  the  United  States,  but  rather  to  encourage  and  maintain 
It,  and  that  Canadian  p  ,-ts  are  at  present  open  to  the  uhole  merchant 
navy  cf  the  United  States  or,  the  .ame  liberal  conditions  as  heretofore 
accorded. " 

On  June  7.  -356,  the  Canadian  fiovernor-Cien-rai  advised  the  Minister 
of  foreign  af  air.-,  at  London: 

-No  attempt  has  been   made  either  bv   the  authorities  intr.st.-d  with 
the  enforcement  cf  the  existing  Uw  or  by  the  Parliament  of  the  Domin- 
ion to  iMte     •-.■  u  ith  vessels  engaged  in  bona  fide  commercial  trans, 
upon  the  cu...       f   the    Dominion.     The   tvo   vessels   %^hich   h.  .en 

»eued  are  both  of  them  bevond  uU  question  fi.hing  .esseN  r-d  not 
traders,  and  therefore  liable,  subject  to  the  fin  ling  of  the  courts,  to  any 
pen.  ,  ^mpo^ed  by  law  for  the  en.orcement  of  the  cunve.itiur-  !  ,3,8 
on  p     xiet  violating    the  tei  r,is  of  that  convention.  * 

On  June  14.  kVS6.  a  committee  of  the  p.iw  counu.  (..r  Canada  put 
forth  the  following  opinions  and  conclusions,  -rhich  were  appro- ed  by 
'h*- G  ,vernor-Gcncral: 

"  It  is  not,  however,  the  case  that  the  con.^.-„tio.i  f  181S  .fTect.  1  only 
th^  ln,hore  fi»luri.-H  of  the  British  provinces;  it  was  framed  «ith  the 
objrct  of  .-iffording  a  .  .,n,plcte  -nd  exclusive  uef.nl  Ion  of  the  rights  ^nd 


■.ic»   v»  men 


!i»turmen  ol  th     United 


latis  werethenc  forward  to 


94 


THE    UNITED    STATES    AXD 


^d  yet  be  entitled   to  all  the  privileges  of  a  trader/and  th.t  the 
language  of  the  treaty  should  be  liberally  eonstrued 
Un  the  26th  of  January,   1SS-7    Mr    PN„i, 

men,  con„p,„„s  ol  in  ehosc  ca.cs  is  .ha,  c.isU  g  r^':  , Lt  hf' 
been  cons,rued  wi,h_a  ,echnica,  s,ric.„css  a„3  enfo;:ea  wi'h  a 

for  Intercourse  .iih  their  people      ItUtT    f  '"'^  Provinces,  or 

-     the  scope  of  that  conventfon  t  in      :;e;::HT:h""'":-^''^^"^'°"  °^ 
by  which  such  access  is  denied    excZ      „  H  ^^°*^  °'"^  Provisions 

purposes  specifically  described  ^  '"'"'  '■''1"'""«  ''  ^°-  the 

"  Such  an  undue  expansion  would,  upon  the  other  hand  rertnj   ,     .  , 
place    f,  under  cover  of  if*  ,..^   •  •  ,   "'"*=r  nand,  certainly  uke 

mission  were  accorded  to  United  Sf^f*..  «  k"  '""'^^'  P^""" 

.he  h„bo„  o,  ,He  Do^^nL^r.  t'    ."  .t^JZLT;:,''^';"''^  " 
vessel,  or  „,  avoiding  risk  .o  human  UU.  b,„   ,n  o.i  "o  use  ihl".'^" 

"The  undersigned,  therefore,  cannot  concur  i.    Mr   K...  a> 
tlon  tha.  'to  prevent  the  purchase  of  bait  or  J     ,k  ^        '  '°"''"- 

deep.,ea  fishing,  would  be  to  expand  he  /''  ^' '"^'^'-^  "'^"^^'^ '°^ 
beyond  the  pufview,  .cope  Ld.nTent  of  th  ?"'""  '°  °''i-'^ -^o"  y 
effect  never  contemplated  •  '"^^  ''''^^■'  '^"'^  '°  ^'^^  '°  ''  -" 

"Mr.  Bajrard  suggests  that  the  possession  by  a  fishing  vessel  of  , 
mit  to  'touch  and   trade'  .hould  give  to  her  a  ri,  h  "o  ent'      C       T""' 
port,  for  other  than  the  purposesL.ned  in  the  tre.t     or   in  o  h  ^ 

.hould  give   her   pe.fect   inlunit,    from    it.      "    Jio  J"  Th^ 

^^rd'srate's^;:?' t  *  t^'  -'  ^'^  '^-'^-  ^---  "-uL^ena;,:" 

United  States  collector  of  customs,  by  issuing  a  licence  originally  only 
Intended  for  purposes  of  domestic  customs  regulation   to  ^ive  e..mnT 
from  the  treaty  to  every  United  States  fishing  vessel      tZoIT^II 
that  .imilar  vessel,  under  the  British  fiag  have  t   e  Vll^  to     n^      '." 
po..  of  the   United  States  for  the  purchL-  of  «;;.,•  fL"     ^1: 
When  it  I.  remembered  that  the  convention  of  .8.8  contained  no  restr Ic 


THE    NORTHKASTKKN    KISKEKXES.  gC 

severity  in  cases  of  inadvertent  and  accidental  violations  whcic 
no  harm  was  done,  which  is  both  unusual  and  unneccssarv, 
whereby  the  voyages  pt  the  vessels  have  been  broken  up  and 
penalties  incurred.  That  the  liberal  and  reasonable  construc- 
tion of  those  laws  that  ha^  prevailed  for  many  years,  and  *n 
which  the  fishermen  have  become  accustomed,  was  chano-ed 
without  any  notice  given,   and   that  every  opportunity  of  un- 

tion  on  British  vessels  and  no  renunciation  of  any  privileges  in  regard  to 
them." 

On  August  14,  1886,  the  Minister  of  Marine  and  Fisheries  said: 
"There  seems  no  doubt,  therefore,  that  the  Novelty  was  in  character 
and  in  purpose  a  fishing  vessel,  and  as  such  comes  under  the  provisions 
of  the  treaty  of  1818,  which  allows  United  States  fishing  vessels  to  enter 
Canadian  ports  '  for  the  purpose  of  shelter  and  repairing  damages  therein, 
and  of  purchasing  wood  and  of  obtaining  water,  and  for  no  other  pur- 
pose whatever.' 

"The  object  of  the  captain  was  to  ob^.i:  -  supplies  for  the  osccution  of 
his  fishing,  and  to  trans-ship  his  cargf  .f  fish  at  a  Caiv.uian  port,  both 
of  which  are  contrary  to  the  letter  anci  spirit  of  the  convention  ci  181S." 
On  October  30,  18S6,  a  committee  of  the  Canadian  privy  council  con- 
tended, and  the  administration  of  the  government  in  council  upheld  the 
contention  — 

"That  the  convention  of  iSiS,  while  it  grants  to  United  States  fish- 
ermen the  right  of  fishing  in  common  with  Briti-,h  subjects  on  the  shores 
of  the  Magdalen  Islands,  does  not  confer  upon  them  privileges  of  trad- 
ing or  of  shipping  men,  and  it  was  against  possible  acts  of  the  latter  ki.-:d, 
and  not  against  fishing  inshore,  or  seeking  the  rights  of  hospitality 
guaranteed  under  the  treaty,  that  Captain  Vacheni  [McEachern]  was 
warned  by  the  collector." 

On  November  24,  1S86,  a  committee  of  the  Canadian  privy  council  de- 
claicd,  and  the  governor-general  approved  the  declaration: 

"The  minister  of  marine  and  fisheries,  to  whom  said  dispatch  was  re- 
ferred for  early  report,  states  that  any  foreign  vessel,  'not  manned  nor 
equipped,  nor  in  any  way  prepared  for  taking  fish,'  has  full  liberty  of 
commercial  intercourse  in  Canadian  ports  upon  the  same  conditions  as 
are  applicable  to  regularly  registered  foreign  merchant  vessels;  nor  is 
any  restriction  imposed  upon  any  foreign  vessels  dealing  in  fish  of  any 
kind  different  from  those  imposed  upon  foreign  merchant  vessels  dealing 
in  other  commercial  commodities. 

"That  the  regulations  under  which  foreign  vessels  may  trade  at 
Canadian  ports  are  contained  in  the  customs  l.-iws  of  Canada  (a  cop\  of 
which  Is  herewith),  and  which  render  it  necessary,  among  other  things, 
that  upon  arrival  at  any  Canadian  port  a  vessel  must  at  once  enter  in- 


•'»! 


96 


THE    UNITED    STATES    AND 


necessary  interference  with  the  American  fishin..  vessels   to  »h 
prejud.ce  and  destruction  of  their  business,  had  bt-en      ai  ^^^^^^^^^ 
On    the    2nd    of  June,    ,SS6,    Mr.    Phelps    wrote    to    T  nH 
Rosebery :    » The  question  is  not  what  is  th.  f     ^  ,    ^ 

the  words,  but    what  is  the  cons'truction  1  '^''^  °^ 

dignity,  theiust  interests  and  thelri        yTettir  7 1"  '"' 
ereign  powers."'  '  relations  of  the  sov. 

entTr'r""  h'"  ^iI'T  °''°  "'''""'  ^°'  "^  "^hermen  the  nght  ,„ 
en^er  Cnad.on  h.rbors  for  the  purpose  of  selling  and  pl^rchn, 

;:  ^a^ ';r^:--r ','h  tri '-  "7  r  ""'"'--• 

;-r  ""'^  '°  - --=""oA3^  s'  et  cr.eC^ 
piiv  deges  as  are  permitted  her  own  shipping  ,„  ,he  ports  ofX 

Mr.  Manning,  Secretary  of  the  Treasnrv    ;^  .'    i     . 
lution  of  the  House  of  RepresentaJr  of  D  I'        "  '"" 

calling  for  an  interpretation  oh       anff  ?"'"         ^^'  ''^'' 
duties  on  fish,  says:  ^  ^"^'^   respecting   the 

"^"•■•"g^he  past  summer,  while  American  vessels  re^ularlv 
ucj  or    tive    millions   against   a  communitv  of  sixtv  millin,.! 

cation. „„ „, . ,  . ,,.. ,„„„^„. .;;-;;--; 'Z':X::^z:'^ 

article  of      e  ,rt,       ,  u  ^"^         *""'      '"  ""■  ""ile  ll.et.e„,,..nr.l 

Marnh  in  American  Law  Review.  May-June    i88'  ' 

»  Letter  to  House  Committee  on    Foreign  Affair*    Feby    c    ;88-      Fl 
R.  Rept.  No.  4087,  49tJ.  Cong.,  jnd  Sess.  -  ^«^b.v.  5.  ^38,.     H. 


THE    NORTHEASTERN-    FISHERIES. 


97 


leges  of  trading  in  Canadian  ports,  Canadian  fishing  vessel^ 
have  been  permitted  freely  to  enter  and  use  American  port-, 
along  the  New  England  coast,  have  been  protected  by  this  De- 
partment in  such  entry  and  use,  and  have  not  been  required  to 
pay  any  other  fees,  charges,  taxes,  or  dues  than  have  been  im- 
posed upon  the  vessels  of  other  governments  similarly  situated. 
The  hospitality  elsewhere  and  generally  extended  in  British 
ports  to  American  commercial  vessels  has  not  been  less,  in  qual- 
ity or  quantity,  as  I  am  informed,  than  the  hospitality  extended 
to  British  vessels  in  American  ports;  but  there  is  this  marked 
difference,  that,  while  this  Department  protects  Canadian  fish- 
ermen in  the  use  of  American  ports  the  Dominion  of  Canada 
brutally  excludes  American  t'shernien  from  Canadian  ports. 
This  denenden(je  of  port  hospitality,  a.;  between  this  Govern- 
ment and  the  British  Government,  in  respect  to  ves&els  of  either, 
is  emphasized  by  the  seventeenth  section  of  the  law  of  June  19, 
18S6,  empowering  the  President  to  suspend  coiuniercial  privi- 
leges to  the  vessels  of  any  country  denying  the  same  to  the 
United  States  vessels.  That  section  is  in  harmony  with  a  sec- 
tion in  the  British  navigation  law  which  authorizes  the  Queen, 
whenever  British  vessels  are  subject  in  any  foreign  country  to  pro- 
hibitions or  restrictions  to  impose  by  order  in  council  such  pro- 
hibitions or  restrictions  upon  the  ships  of  such  foreign  country, 
either  as  to  voyages  in  which  they  may  engage  or  as  to  the  ar- 
ticles which  they  may  import  into  or  export  from  any  British 
possession  in  any  part  of  the  world,  so  as  to  place  the  <;hips  of 
such  country  on  as  nearly  as  possible  the  same  footing  in  Bili- 
ish  ports  as  that  on  which  British  ships  are  placed  in  ports  of 
such  country." 

Admitting  that  the  words  "for  no  other  purpose  whatever" 
in  the  fishery  clause  of  1S18,  rebut  the  idea  that  commercial 
privileges  were  to  be  granted  to  the  United  States,  as  at  that 
time  Great  Britain  had  closed  all  her  colonial  ports  to  foreign 
vessels  by  law,  it  is  claimed  that  she  opened  them  in  the  same 
way  by  the  proclamation  of  1830,  ^nd  that  they  stand  open  un- 
til closed  by  law.  "Since  the  proclamation  (of  1830)  the  fishing 
vessels  of  Canada  have  enjoyed  in  the  ports  of  the  United 
States  every  privilege  of  commerce  flowing  from  those  pro- 
clamations.    Not  only  did  Canada  know  this,  but  a  perverse  dis- 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


// 


W' 


^My 


U. 


ms 


^ 


1.0 


I.I 


!.25 


1^1^    12.5 

•^  lis    pi|2  2 
j»^  1^    Imlaa 


1.4 


1.6 


—     6' 


<% 


/r 


^ 


w 


Photographic 

Sciences 
Corpordtion 


33  WIST  MAIN  STRItT 

WIBSTIR  N  Y    UStO 

(  7)6  1  S71  4)03 


^ 


.^■^^ 


\ 


^ 


#> 


V 


^    -.    -^-Q 


^.V- 


\ 


> 


^' 


w 


%^ 


V 


98 


THE    UNITED    STATES    AND 


position  has  induced  her,  while  continuing  in  their  unrestricted 
use  and  enjoyment,  to  endeavor  to  deprive  our  fishermen  of  their 
similar  rights  in  Canada.'" 

In  May,  i8S6,  Congress  gave  to  the  President  power  to 
suspend  commercial  relations  with  Canada,  in  addition  to  the 
power  possessed  since  1823,  of  discriminating  against  foreign 
vessels  m  the  ports  of  the  United  State..  During  the  Second 
Session  of  the  Forty-ninth  Congress  the  indignation  of  the  coun- 
try found  expression  in  two  bills  looking  towards  retaliation. 
The  one  introduced  in  the  House  of  Representatives'  prohi- 
bited  all    commercial  intercourse   with   Canada,   by    land   or 

water, 

^^  » 

The  Senate  would  not  agree  to  so  radical  a  measure  and 
proposed  a  bill  intended  to  apply  to  that  portion  of  our  com- 
merce with  Canada  carried  on  in  Canadian  vessels.  This  bill 
was  the  occasion  of  a  debate  in  the  Senate  in  which  some  of  the 
Senators,  notably  Senator  Ingalls,  took  advantage  of  the  oppor- 
tunity  to  refer  to  Great  Britain  in  terms  far  from  compliment- 

For  several  weeks  the  fishery  question  was  the  all-absorbing 
topic,  and  threats  of  war  were  freely  made.  The  power  thus 
vested  in  the  President  has  not  been  exercised  and  negotiations 
have  been  continued  looking  to  a  settlement  of  the  question  by 
other  means.  But  the  reader  who  has  followed  the  history 
of  the  controversy  will  not  be  inclined  to  attach  too  much  credit 
to  newspaper  paragraphs  stating  that  the  "vexed  fishery  dis- 
pute    IS  on  the  point  of  being  finally  adjusted. 

The  Canadian  authorities  have  taken  a  position  and  seem 
inclined  to  defend  to  the  end  what  they  consider  their  rights  ♦ 
Their  cruisers'  are  guarding  the  fishery  grounds,  and  col- 
Iisions  with  the  fishermen  are  liable  to  take  place  at  any  time. 
Ihe  United  States  has  also  sent  a  war  vessel  to  the  coast 
with  instructions  to  watch  over  American  interests. 


»l  .Woodford  In  Am    Law  Review,  Ma^-June,  1887 
H.  R.  Rept.  Nos.  36473648.  49th  Cong ,  and  Sess. 
Conpre..lonal  Record.  Jan.  25,  ,8.87.  pp.  98s.  et  »eq. 
Am.  Law   Rev.,  .Ma>  June.  1887.     The   KortniuK.l„   p-^i. 
000.     Reprinted  In  Edectic.  Ma>-,  1887.  "      ' 

American  Magiiil.ie  for  June,  1887. 


\.f-  — ». 


THE    NOKTHfASTERN    FISHERIES. 


99 


What  was  practically  the  Senate  Bill  passed  both  houses  and 
received  ths  President's  approval  on  the  3rd  of  March,  1887.' 

The  enforcement  of  the  provisions  of  this  -.o-callei  i  fetaliatory 
law  was  left  entirely  in  the  discretion  of  the  President,  but  as 
the  admin'  tration  was  pledged  to  the  British  Government  to 

'  The  full  text  of  this  important  law  is  as  follows: 

Be  it  enacted,  &c.,  That  whenever  the  President  of  the  United  States 
shall  be  satisfied  that  American  nshing  vesse'j  or  American  fishermen, 
visiting  O'  being  in  the  waters  or  at  any  ports  or  places  of  the  BHtish 
aominions  of  North  America,  are  or  then  lately  have  been  denied  or 
abridged  in  the  enjoyment  of  any  rights  secured  to  them  by  treaty  or 
law,  or  are  or  then  lately  have  (been)  unjustly  vexed  or  harassed  in  the 
enjoyment  of  such  rights  or  subjected  to  unreasonable  restrictions,  reg- 
ulations, or  requirements  in  respect  to  such  rights;  or  otherwise  unjustly 
vexed  or  harassed  in  said  waters,  ports,  or  places;  or  whenever  the 
President  of  the  United  States  shall  be  satisfied  that  any  such  fishing 
■  vessels  or  fishermen,  having  a  permit  under  the  1j  ■  s  of  the  United 
States  to  touch  and  trade  at  any  port  or  ports,  place  or  places,  In  the 
British  dominions  of  North  America,  are  or  then  lately  have  been  denied 
the  privilege  of  entering  such  port  or  ports,  place  or  places  In  the  same 
manner  and  under  the  same  regulations  as  may  exist  therein  applicable 
to  trading  vessels  of  the  most  favored  nation,  or  shall  be  unjustly  vexed 
or  harassed  in  respect  thereof,  or  otherwise  be  unjustly  vexed  or  har- 
assed therein,  or  shall  be  prevented  from  purchasing  such  supplies  as 
may  there  be  lawfully  sold  to  trading  vessels  of  the  most  favored  nation; 
or  whenever  the  President  of  the  United  States  shall  be  satisfied  that  any 
other  vessels  of  the  United  States,  their  masters  or  crews,  so  arriving  at 
or  being  in  such  British  waters,  or  ports,  or  places  of  the  British  domin- 
ions of  North  America,  are  or  then  lately  have  been  denied  any  of  the 
privileges  therein  accorded  to  the  vessels,  their  mast.'.rs  or  crews,  of  the 
most  favored  nation,  or  unjustly  vexed  or  harassed  in  respect  of  the 
same,  or  unjustly  vexed  or  harassed  therein  by  the  authorities  thereof, 
then,  and  in  either  or  all  of  such  cases,  it  shall  be  lawful,  and  it  shall  bs 
the  duty  of  the  President  of  the  United  States,  In  ills  discretion,  by  pro- 
clamaticn  to  that  effect,  to  deny  vessels,  their  masters  and  crews,  of  the 
British  dominions  of  North  America,  any  entrance  into  the  waters,  ports, 
or  places  of,  or  within  the  United  States  (with  such  exceptions  In  regard 
to  vessels  in  distress,  stre:>!>  ot  weather,  or  needing  supplies  as  to  the 
President  shall  seem  proper),  whether  such  vessels  shall  have  cone 
directly  from  said  dominions  on  such  destined  voyage  or  by  way  of  some 
port  ur  place  '.n  such  destined  voyage  elsewhere;  and  also,  to  deny  entry 
into  any  port  or  place  of  the  United  States  of  fresh  fish  or  salt  fish  or  any 

dominions  to  the  United  Slates.     The  Presia<;nt  may.  In  his  discretion, 


lOO 


THE    UNITED    STATES    AND 


attempt  to  solve  the  questioriS  by  means  of  another  Joint  Com- 
mission, the  President  has  not  seen  fit  to  infuse  life  into  it.  The 
British  statesmen  continued  to  urge  the  plan  of  a  Commission 
until  success  again  crowned  their  efiforts  and  a  new  Fishery 
Commission  is  announced  to  meet  in  Washington  in  the  near 
future.'  It  is  to  be  hoped  that  its  labors,  should  they  receive 
the  sanction  of  the  Senate  will  prove  less  prejudicial  to  the  in- 
terests of  the  United  States,  than  those  :>i  its  predecessor. 

apply  cuch  proclamation  to  any  part  or  to  all  of  the  foregoing  named 
subjects,  and  may  revoke,  qualify,  limit,  and  review  such  proclamation 
from  time  to  time  as  he  may  deem  necessary  to  the  full  and  just  execu- 
tion of  the  purposes  of  this  act.     Every  violation  of  any  such  proclama- 
tion,  or  any  part  thereof,  is  hereby  declared  illegal,  and  all  vessels  and 
goods  so  corning  or  being  within  the  waters,  ports  or  places  of  the 
United  States  contrary  to  such  proclamation  shall  be  forfeired  to  the 
United  States;  and  such  forfeiture  shall  be  enforced  and  proceeded  upon 
In  the  same  manner  and  with  the  same  effect  as  in  the  case  of  vessels  or 
goods  whose  importation  or  coming  to  or  being  in  the  waters  or  ports  of 
the  United  States  contrary  to  law  may  now  be  enforced  and  proceeded 
upon.     Every  person  who  shall  violate  any  of  the  orovisions  of  this  act, 
cr  such  proclamation  of  the  President  made  in  pursuance  thereof,  shall 
be  oeemed  guilty  of  a  misdemean'>r,  and,  on  conviction  thereof,  shall  be 
punished  by  a  fine  not  exceeding  $i,ooo,  or  by  imprisonment  ^o:  a  term 
not  exceeding  two  j^ears,  or  by  both  said  punishments,  in  the  discretion 
of  the  court    Statutes  of  the  U.  S.  of  America,  passed  at  the  2nd  Sess., 
49th  Cong.,  1886-87,  PP-  475-6. 

>  The  members  of  the  commission  are  Secretary  Bayard,  Pres  Angell 
of  the  University  of  Michigan,  and  Mr.  Putnam,  of  Maine,  on  the  part  of 
the  United  States,  and  Mr.  Joseph  Chamberlain,  Sir  Charles  Tupper  and 
Sir  L.  West,  the  British  Minister,  on  the  part  of  Great  Britain. 


PART  II 


THE    TREATY   OF    i8t8 


r* 


"  Tliat  palter  with  us  In  a  double  sense, 
That  keep  the  word  of  promise  to  our  ear, 
And  J>reak  It  to  our  hope." 

Macbeth,  Act  v,  Sec.  vll. 

"  ^"^  *»'*  clings  to  the  spirit  and  fraud 
to  the  letter  of  the  convention." 

Phllllmore's  Int.  Lkw,  vol.  3,  p.  97. 


I 


IN  GENERAL. 

by  the  Treaty  of  ,SiS  ■     I„  V     .  '"""'  '""^  ''"'""«' 

to  ci.i„„s  of  .he  VnlStul!;^,^Tjr,^'T^  *""'^ 

•    »«<i  ..  ^n  acknowledgement  of'ri^lV/''."'  '7S3  oper- 

mon  w„h  all  Bntish  subTect,  and  fha^bv  °"  '"'°^"'  '"  '^<""- 

of  .8.S  the  United  Stat^ t' olr  : '^JrrZt'"'"'^ 

consented  to  the  restriction  «f  •.    .      •         certain  admissions, 

waters.     The  n.:::^Z:^  l^^''^  ^^^.^^  -  «-^«h 
retain  all  rights  and  privileges  noc   to  '  ,1  ""  '''""^" 

The  following  difgram  wM  .on^        ^  renounced, 
rights  rad  liberties  tfwhi  IV      '^  '  ^"""''^  '^^^  °f  the 

State,  should  declare  thaJ  treaty  no  on  !  r'^'  °'  '''«'  ^^^  ^"'ted 
HghU  under  the  t.^eat^  of  ?ir  With^aT.  i"  ""  '^"^  '"^'^'  "P°"  «'' 
authority..  I  .:n  Inclined  to  regard  ZcLL  '"^"' '°  '°  "^""^""^  *" 
Britain  would  never  admj/1      ,  !  ""^  *'  '^practicable.  Great 

resort  to  .rn.s.  tI  Jro"  ^  u'-h  a  M  "'/l'^"""  "^  '^"'°'=^'^  -'A^a 
the  extent  of  war  In  tsTppor^w'ulTh!^  °^  ''^  '"''="' '°  «°  ""  '° 
t'on.  have  agreed  to  reJrdX  T^°         f  r^'  '^^"^  ""•='"»•     ^^^  "»- 

and  effect,  and  to  It  u-!  -     ^    ^'"'^  °^  '^'^  ^*  ''^'"K  now  In  full  i 

ermen.  '  ""='  '^"*  '"'^  '"^  rignts  and  liberties  of  ouVfishT 


I 


I04 


THE    UNirLI>    -TATLS    AND 


TREATY  OF   1818. 


TiXE    NORTHEASTERX 


fisiiEniEi 


'05 


RULES  OF  CONSTRUCTION. 


7  absurd  we  have  n'o7;:";^,;-«Je„.  and  the  c^^^^^^^^^^ 
-Iter  or  add   to  it  by  confecture      T      ^°"^  °'"  ""'^^^-'^  it,  to 
-d  construed  in  accordanc  "  i'th  T"'"  ""^  ^«  -^-P^e  ed 

;.?'  ^^*^'-«  "  no  superior  power  tn      V  "^  "P°"  ^^^d  faith 

H«PP'ly.  .t  has  been  found  th^t  ^    ?  ""  construing  them 
of  proceeding.     Honest  diplotlVv  "     "  '!"'  "^^^  P°''^-  waT' 
on  *he  mere  ground  of  e^Ten^  '"  ""^'^^  Referable,  even 

^heirle^--^.^  ^  -^XZ:;;;!^^^^  ^-'-^^  '•"  wJ:" 

■ineir  meaning." sav«rk„       •.        ^ 
by  the  same  rulet  oT^s^"" '-3^^^'  ---o  be  ascer^ 

«PPly  to  private  contracts."  "'^  '°""'^  of  reasoning  as 


WISHING   RIGHTS  OF  AMERlCAV  n 

•^•MtRICAN  CITIZENS. 

•      '^  THE  DEEP  SEA. 

deep  sea  arits'p!od"ucT'' ?£'  ?.'^'   ^°'"'"on    use    of   the 
-T^^;;;;;^^— --^^ ff^J^c^been  abandoned. 

Con,„,enUr,c,  vo,   ■V'^^'^^"'^'^  ^^i)-  PP-  .80.  .8.. 
^"ow    the    2Z1]  "*'"'"   -"'ch   .re    ine^'h^u^Us/"  ''''   ^^"^ '    '«' 


i 


I- 


I 


lOO 


THE    UNITED    STATES    AND 


But  some  difference  of  opinion  still  exists  as  to  what  waters  are 
inclucfed  in  the  open  sea.  The  treaty  of  1783  recognized  the 
right  of  American  fishermen  "to  take  fish  of  any  kind  on  the 
Grand  Bank,  and  on  all  the  other  banks  of  Newfoundland,  and 
in  the  Gulf  of  St.  Lawrence,"  This  was  btit  declaratory  of  the 
common  international  law  as  understood  by  Great  Britain,  as  she 
has  always  distingr.ished  between  the  "right"  to  fish  on  the 
banks,  and  the  "liberty"  of  fishing  in  territorial  waters.  She  is 
consequently  estopped  forever  from  closing  the  Gulf  of  St.  Law- 
rence on  the  claim  of  exclusive  jurisdiction  over  the  land-locked 
seas.  The  Bay  of  Fundy  was  also,  as  we  have  seen,  declared 
not  to  be  a  British  bay  by  the  decision  in  the  cas  *  of  the  Wash- 
ington. 

Great  Britain  still  adheres  to  the  "headland  theory"  and  as- 
sumes the  right  to  exclusive  jurisdiction  over  all  gulfs  and  bays, 
regardless  of  size. 

The  Three  Mile  Limit — Prior  to  the  year  1818,  the  United 
States  fishermen  enjoyed  the  right  to  take  fish  of  every  kind  at 
all  places  in  the  sea  "whence  the  inhabitants  of  both  countries 
used  at  any  time  heretofore  to  fish,"  but  in  order  to  obtain  the 
insertion  of  the  wonl  "  forever"  in  the  Convention,  the  Ameri- 
can Commissioners  consented  to  the  restriction  oi  these  rights 
on  certain  parts  of  the  coast.' 

As  the  result  of  this  compromise  the  United  States  "renounce 
any  liberty  heretofore  enjoyed  or  claimed  by  the  inhabitants 
thereof,  to  take,  dry,  or  cure  fish  on  or  within  three  marine 
miles  of  the  coasts,  bays,  creeks,  or  harbors  of  His  Britannic 
Majesty's  dominions  in  America  not  included  within  the  above 
mentioned  limits." 

The  question  arose  at  an  early  period.  Where  shall  this  imagi- 
nary line  be  drawn?  Shall  it  follow  the  shore,  having  respect 
to  all  its  sinuosities  and  be  drawn  across  the  mouths  of  bays 
which  are  six  miles  or  less  in  width,  or  shall  it  be  drawn  from 


fishery  In  the  British  sea*  are — then  all  those  convention*  by  which  one 
or  two  nation*  claim  to  themselves,  and  guarantee  to  each  other,  the  ex- 

..j„^.  .--.  -  _.  --       .-- 

the  general  rights  of  mnnkind."     Pale^'s  Moral  und  Political  Phllonoph^, 
(ed.  18a I),  p.  84 

'Gallatin  to  J.  Q.  Adams.     Gallatin's  Writings,  vol.  j,  p.  Si 


.     THE    NORTHEASTERS    P,S„ER,es.  ,„- 

hMdIand  to  headland,  thus  excludin,,  A        ■        .. 
.'Unciosed  waters  *Lther  i:l:^tof,t:;;'>r"  "'-""'-  '™- 

The  cla™  has  not  ho^^^  \tV:^°'  "V''  "'""  "''''^'-  ' 
.870  Lord  Granvi  le  tele,    ^hd  the  r°™^  '"?'«'  "P""-     '" 
,      »d«:  "Her  Males-.'.  r„       "^  '^°*'^''""-*^"«"' o' Can- 

fisher^e",^^':  be  ;r  n  '  ''"""  '""'  "■'  U"'""  S'^'« 
except  w:,hi„  thre  m  le,  ot  lancl  or'  r""?"  '""■  ^'*''"'' 
.hree  .lies  broad  at  ehrjol^"';?/^: ";  ;'^,\7 '«  «!- 
was  stated  as  tollows:    ..The  riirht  of  r      .  o  ?  '''•"""° 

American   fishermen  from  1  ?"'"""""' """'•< 

co«.  is  unambiguous,  and  ITJv  .  """  """'  °'  *' 
.here  appears  to'  be  s^me  do  brwtrrt'he""","'"';"-  ^'" 
•»  within  three  miles  of  bays,  erleks  Th  .  ?  "  '''^""'"' 
l>«y  Is  less  than  six  miles  broduwiter,  u'     ''''""  " 

mil..-  limit,  and  therefore  cl  .riv  Z,"  Th!  "  "'  """ 

trealv;   but  when  i, ;.  „,  ^  "  ''^°  meaning  of  the 

-«;  whether  itTs      "  ay  oTnef Br^  ""l'"-  "«  "-''- 
ions.     This  is  a  question  whifh  h  ?"  '^''""'''  <'™i"- 

particular  case  wW.    "  .rit      ^"^     •  ""  '"""""«'  "  "'•< 
When  such  a  bav    '/'?"''''>'''•""'"">"»'  '^ws  and  usages. 

.h.  America'n'fi^e™;:  ::  t^'e^S  ''V/' "-"'^°"" 
wi.hin  three  mile,  of  the  coas^  '  K  ''  ,  "  ".'''  '"  "  "«P' 
icty,  dominion,.,  they  wi  1  loTbernt  ,ld  I  \7  "' ^"  ^'■ 
miles  of  it:  that  is  to  sav  :,  ■  "'''  "'"»"  <•"« 

.  line  draw'n  from'iradZd". :  O::^:^"-  '"^  ■""«  of 

J^TsV::T:r  it  rce^riirrh""^  "'".■•" '^' 
^^srsc^rt  t^  T\r5f  ^"  -  -- 

Co/     He  said:    u  It  do-s  nJ       ^"S'^-American  Telegraph 
____i^^o^^sj^ot^ear  to   their    lordships    that 

'  Memorandum  from  the  P      i 
^ttle  the  limit,  of  the  rl«h.  of.!",.?.'!."..'!*^"''"*  '  -°--"»'oa  to 


ionh  America;  iJe»,(or.4l  P«di 


-'/    vii   II 


'  See  p.  64 


•upra. 


'  L.  R.  a  App.  C«».  394  (,87 


•c".  7  to  19,  vol.  J,  No.  4,  187 


ic  joasi  01  Mrltish 


7) 


io8 


THE    UNITED    STATES    AND 


jurists  and  text  writers  are  agreed  what  are  the  rules  as  to 
dimensions  and  configurations,  which,  apart  from  other  con- 
siderations, would  lead  to  the  conclusion  that  a  bay  is  or  is  not 
a  part  of  the  territory  of  the  state  possessing  the  adjoining 
coasts;  and  it  has  never,  that  they  can  find,  been  made  the 
ground  of  any  judicial  interpretation."  But  the  court  held  that 
the  Bay  of  Conception,  on  the  east  coast  of  Newfoundland, 
was  a  British  Bay,  and  said  in  reference  to  the  Convention  of 
1818,  "It  seerfis  impossible  to  doubt  that  this  convention  applied 
to  all  bays,  whether  large  or  small  on  that  coast." 

The  United  States  claims  exclusive  jurisdiction  over  the  Ches- 
apeake and  Delaware  Bays,'  and  in  1793  the  English  ship 
Grange,  captured  by  a  French  vessel,  was  restored  on  the 
ground  that  the  Delaware  Bay  was  neutral  water.' 

The  claim  of  Great  Britain  to  exclusive  jurisdiction  over  any 
portion  of  the  deep  sea  was  denied  by  a  decision  of  one  of  her 
courts  in  1876,*  and  of  her  claim  of  jurisdiction  over  the  "QueenV 
Chamber"  a  late  English  writer  on  International  law  says, 
**  England  would  no  doubt  not  attempt  any  longer  to  assert  a 
right  of  property  over  the  Queen's  Chan.ber,  which  includes 
the  waters  within  lines  drawn  from  headland  to  headland,  * 
•  *  but  some  writers  seem  to  admit  that  they  belong  to  her, 
and  a  recent  decision  of  the  Privy  Council  has  affirmed  her  jur- 
isdiction over  the  Bay  of  Conception,  in  Newfoundland,  which 
penetrates  forty  miles  into  the  land  and  is  fifteen  miles  in  mean 
breadth."* 

"The  impossibility  of  property  in  the  sea"  says  Ortolan,'  "re- 

>  Stetson  vs.  United  States,  (Ct.  of  A.la.  Claim),  33  Alb.  L.  J.,  483. 

•  Am.  St.  Papers,  vol.  i,  p.  73. 

»  Queen  vs.  Keyn,  L.  R.  3  Exch.,  Div.  63.  The  opinions  of  the  differ- 
ent judges  in  this  case  contain  almost  all  the  learning,  ancient  and  mod- 
en.  English,  American,  and  Continental,  on  the  extent  of  territorial 
waters  and  jurisdiction  over  them. 

•  Hall's  Int.  Law,  p.  138.  The  maritime  supremacy  claimed  by  Creat 
Britain  over  the  narrow  seas  has  been  asserted  by  requiring  certain 
honors  to  the  British  flag,  which  have  been  rendered  or  refused  accord- 

l-._     »—     _!-...._.... TU_     -1_! 1»._1<     I •  ..  .    . 

»"B    ••■^   vsivuiriT-ia-,:-.^-.       1  ::c    via::::    i-.=c::    :ias    xicvcr    uccn    SSnciioriCu  DjT 

general  acquiescence.     Wheaton's   Int.  Law,  (Dana)  §  181 ;     Whcaton's 
Hist.  Law  of  Nations,  pp.  154,  157;  Edinburgh  Review,  vol.  il,  pp.  17,  19. 

•  Diplomatic  de  le  Mer,  Lib.  2,  c.  7. 


THE    NORTHEASTERN-    FISHERIES.  109 

suit,  from  the  physical  nature  of  the  elements,  which  cannot  be 
possessed  and  which  serve  as  the  essential  means  of  communica- 
tion between  men.     The  impossibility  of  empire  over  tne  sea 

results  from  the  equality  of  rights  and  the  reciprocal  indepen- 
dence of  nations."  ^ 

The  position  of  the  United  States  is  stated  by  Secretary  Bay- 
ard as  follows:  ^     ^ 

"We  may,  theref         regard  it  as  settled,  that  so  far  as  con- 
cerns the  eastern  c      -    of    North  America,  the  position  of  this 
department  has  uniformly  been  that  the  sovereignty  of  the  shore 
does  not    so  far  as  territorial    authority  is  concerned,   evtend 
beyond  three  miles  from  low  water  mark,  and  that  the  seaward 
boundary  of  the  zone  of  territorial  waters  follows  the  coast  of 
the  mainland,  extending  where  there  are  islands  so  as  to  place 
around  such  islands  the  same  belt.     This  necessarily  excludes 
the  position  that  the  seaward  boundary  is   to  be  drawn  from 
headland  to  headland,  and  makes  it  follow  closely,  at  a  distance 
<rf  three  miles,  the  boundary  of  the  shore  of  the  continent  or  of 
adjacent  islands  belonging  to  the  continental  sovereign 

«The   position    I  here  stae.    you    .nust    remember,   was  not 
^rf"/"^,^        department  :ula-      'y.     It  was  advanced   in 

penods  when  the  question       peace        var  hung  on  the  decision, 
when,  during  the  three  earner  admini.crations,  we  were  threat- 
ened on  our  coast  by  Great  Britain  .:,d  France,  war  being  im- 
mment  with  Great  Britain,  and  for  a  time  actually  though  not 
formally  engaged  in  with  Fr.nce,  we  asserted  this  line  as  deter- 
mimng  the  extent  of  rur  teiritorial  waters,  when  we  were  in- 
volved m  the  earlier  part  of  Mr.  Jefferson's  administration  in 
difficulties  with  Spain,  we  then  told  Spain  that  we  conceded  to 
her,  so    ar  as  concerned  Cuba,  the  same  limit  of  territorial  waters 
as  we  claimed  for  ourselves,  granting   nothing  more;  and   this 
limit  was  afterwards  reasserted  by  Mr.  Seward  during  the  late 
evil  war,  when  there  was  every  inducc.nent  on  our  part,  not  only 
to  oblige  Spam  but  to  extend,  for  our  own  use  as  a  belligerent 
territorial  pnvileges.^    When  in  1S07,  after  the  outrage   ^n   the* 
,r ^^'77:  "-^  '''^"  ^c^P'"^.  Mr.  jenersoi,  .ssued  a  proclama- 
tion excluding  Bntish  men  of  war  from  our  territorial  waters. 
here  was  the  same  rigor  in  limiting  the.e  waters  to  three  miles 
from  shore,  and  during  our  various  fishing  negotiations  with 


no 


THE    UNITED    STATES    AND 


Great  Britain  vvj  have  insisted  th.it  beyond  the  three   mile  line 
British  territorial  waters  on  the  northeastern  coast  do  not  extend. 
Such  was  our  position  in  17S3,  in  1794,  in  1S15,  in  1818.     Such 
is  our  position  now  in   our  pending  controversy  with  Great 
Britain  on  this  important  issue.     It  is  true  that  there  are  qualifi- 
caiions  to  this  rule,  but  these  qualifications  do  not  affect  its  appli- 
cation to  the  fisheries.     We  do  not,  in  asserting  this  claim,  deny 
the  frre  right  of  vessels  of  other  nations  to  pass  on  peaceful  er- 
rands through  this  zone,  provided  they  do  not,  by  loitering,  pro- 
duce uneasiness  on  the  shora  or  raise  a  suspicion  of  smuggling, 
nor  do  we  hereby  waive  the  right  of  the  sovereign  of  the  shore 
to  require  that  armed  vessels,  whose  projectiles,  u  used  for  prac-* 
tice  or  warfare,  might  strike  the  shore,  should  move  beyond 
cannon  range  of  the  shore,  when  engaged  in  artillery  practice, 
or  in  battle,  as  was  insisted  on  by  the  French  Government  at 
the  time  of  the  fight  between  the  Kearsarge  and  the  Alabama, 
in  1864,  off  the  harbor  of  Cherbourg. 

"We  claim,  also,  that  the  sovereign  of  the  shore  has  the  right, 
on  the  principle  of  self-defense,  to  pursue  and  punish  marauders 
on  the  sea  to  the  very  extent  to  which  their  guns  would  carry 
their  shi ',  and  that  such  sovereign  has  jurisdiction  over  crimes 
committed  by  them  through  such  shot,  although  at  the  time  of 
the  shooting  they   were  beyond  three  miles  from  shore.     But 
these  qualifications  do  not  in  any  way  affect  the  principle  I  now 
assert,  and  which  I  am  asserting  and  pre.-^sing  in  our  present 
contention  with  Great  Britain   as  to  the  northeastern  fisheries. 
'From  the  time  when  European  fishermen  first  visited  the  g^eat 
fisheries  of  the  northeast  Atlantic,  these  fisheries,  subject  to  the 
;wrritofial  jurisdiction  above  stated,  have  been  held  open  to  all 
nations,  and  even  over  the  marine  belt  of  three  miles  the  juris- 
diction of  the  sov_'rcign  of  the  shore  Is  qualified  by  those  modi- 
fications   which     the    law    of     necessity     has    wrought    'nto 
international  law.     F\<)  mg  boats  or  other  vessels  traversing  those 
rough  waters,  have  the  right,  not  only  of  free  transit  of  which 
I  have  spoken,  but  of  relief,  when  suffering  from  want  of  neces- 
saries, from  the   shore.     There   they   may  go  by  the  law  of 
nations,  irrespective  of  treaty,  when  suffering  from    want   of 
water  or  of  food,  or  even  of  bait,  when  essential  to  the  pursuit 
of  'a  trade  which  is  as  precarious  and  as  beset  with  disasters  as 


THE     NOKTIIKAMKKN     M-.iIhl{lKS. 


Ill 

I 


it  is  beneficent  to  the  pop  lation  to  whom  it  supplies  a  cheap 
and  nutritious  food."* 

It  is  a  well  established  rule  of  international  law  that  certain 
parts  of  the  sea  are  territorial  waters  and  are  under  municipal 
jurisdiction.  It  has  been  mutually  acknowledged  hy  all  mari- 
time nations  that  thus  much  must  be  granted  as  a  means  of 
enabling  a  country  to  protect  itself.  The  extent  of  the  terri- 
tonai  water  which  has  been  allowed  has  varied  at  different 
times.  During  the  eighteenth  century  a  margin  varying  from 
a  marine  league  from  the  shore  to  a  space  bounded  by  the  hori- 
zon was  universally  conceded.'  One  authority  even  puts  it  at 
one  hundred  miles. 

There  is  at  present  no  dispute  as  to  a  limited  jurisdiction  over 
the  sea  for  three  marine  miles  from  the  shore.  The  question  is  as 
to  the  right  of  exclusive  jurisdiction  over  hays  whose  mouths  are 
more  than  six  miles  across.  The  position  taken  by  the  United 
States  is  supported  by  every  authorative  modern  writer  on  In- 
ternational Law,  with  possibly  one  exception,  but  (Jreat  Britain 
hns  always  claimed  a   wider  jurisdiction   and   sought  to  extend 


»  Mr.  Bavard  to  Mr.  Manning,  M.iv  28,  1886,  quoted  i..  '.VLarton'-  Dijj. 
Int  Law,  §  ;:,  vol.  1.  p.  107.  In  general  as  to  the  extent  of  the  numne 
beit,8eeJeff<:r,ontoGenet,  N'ov.S,  1798.  .Vtn.  State  P  > ,  vol  i,(For.  Rel.) 
P-  '83;  J.  Q.  .Vdams'  Memoirs,  vol.  1,  p.  376;  \Veb>ter\  Works,  vol.  6.  p. 
306;  Wharton',  Conflict  of  Laws,  §  Js""';  Dana\  note  to  Wheaton's  Int. 
L«w,  §  179,  Fields'  Int.  Code,  2nd  Ed.,  §  :S.  Church  vs.  Hubbard,  2 
Cranch  (U.  S.),  187.  Islands  adjacent  to  the  mainland  are  considered  as 
appurtenfnt  unless  some  other  power  h.iN  obt, lined  title  to  them  :  The 
Anna,  Robinson'*  .\din.  Rep.,  38s;  Halleck',  Int    L.nv,  p.  iji. 

»  B^nkershoek,  De  Dominio  Mart,,  c.  3;  Valin,  Comn.cnt.irie  »ur 
r  Ordonance  'dc  1681,  liv.  v  tit.  i.  cr.  .-tid*  for  a  line  bo>ond  .oundinj,'H; 
Vattel,  Lib.  I,  ch.  ^3,  §  iS.;;  IV  Martoi,.  Prtcis,  §  153.  Lord  Sfowcll  in 
The  Twee  Gebroeders,  3  R,,b  ,  3  v>,  p  iced  the  limit  at  a  cannon  shot  or 
a  marine  league.  Grotius  extends  territorial  rights  over  as  much  of  the 
tea  as  can  be  defended  from  the  >hore:  Lib.  1 1,  cap.  3,  ^  13,  14.  Rav- 
neval,  Instit  liv.  ji,  ch.  .;.  (^  10,  thought  the  hori/on  u.i>  the  boundar'v. 
Casareges  De  Commerce  Disc  I.  i3(,.  >avs  i.r»  mik-s  Galiani  and  .N.'iinl 
regarded  the  question  as  open  to  be  settled  b_v  treaty.  Also  sec  Ilall't 
Int.  Law,  p.  123.  "The  treaties  between  Enjjlnni'  and  the  I'nited  Statta 
of  l8l8,  and  between  Englan.fand  Kr.ince  ..f  jiid  ,\iij.'u-t,  183.,,  settle  the 

(C    marine   Kaifue-.     Tlw    F.nyli«h    Act, 
iKiie  a-,  the  limit  of  jui  Kilitlioii  over  the  ^cas." 


iiniKii  01  exclusive   tisfierv    ut   thr 
1833,  a^Mumes  the  marine  le 


Wheaton'*  E 


lem    Int.  L.\w,  p.  J56,  Oana'>  iioti 


113 


THE    LXITED    STATES    AND 


her  sway  over  ;,I1  ^.Ifs  an,I  bays  whatever  their  sue.     The  one 

wnter  above  referred  to,  IVaili.uore,  who  seems  to  sustain   the 

Bnfsh  claun,  says:     -Besides  tne  rights  of  property  and  juris- 

diction  wth.n  the  Umit  of  cannon  shot  from  ti: .    '^ore,  there  are 

certain  portions  of  the  sea  which,  though  the)  ,        ,d  this  veree 

may   under  special  circumstances,  be  nrescribeu  lor.     Maritime 

terntona  r.ght.  extend,  as  a  general  rule,  over  arms  of  the  sea, 

oays,  gulfs,   estuaries,    which   are    enclosed    but    not    entirely 

surrounded   by   lands  belonging  to  one    and    the   same  State. 

V/.th  respect  to  bays  and  gulfs  so  enclosed,  there  seems  to    be 

no  reason  or  authority  for  a  limitation  suggested  by  Martens. 

Thus  Great  Bntam  has    immemorially  claimed    and    exercised 

property  and  junsdictzon  over  the  bays  or  portions  of  seas  cut 

de^('      '    r^'rV'""°"'P''°'"°"^°^^^°^"°^her,  and  called 
tlie  'King's  Chamber.'  "  ' 

This  limitation,  discarded  by  Phillimore,  is  supported  by  an 
almost  unbroken  line  of  authorities.     Sir  Travers  Twiss,  a  late 
^n.M.sh  writer,  thus  describes  what  he  calls  jurisdictional  waters. 
After  stating  that  hostilities  cannot  be  carried  on  within  a  certain 
distance  of   a   neutral  shore  he  says:     "This  distance  is    held 
to  extend  as  far  as  the  safety  of  a    nation  renders  it  necessary, 
.nd  Its  power  is  adequate  to  assert  it;  and  as  that  distance  can- 
not with  convenience  to  the  nations,   be  variable,  depending  on 
he  presence  or  absence  of  an  armed  fleet,  it  is  by  praclice  fden- 
tified  with  that  distance  over   which   a  nation    can    co->^mand 
obedience  to  its  empire  by  the  fire  of  its  cannon.     That  distance 
IS,  by  consent,  taken  to  be  a  maritime  leajrue  seaward  along  all 
the  coasts  of   a   nation.      Beyond   the   distance  of   a  sea   lea<.ue 
from  Its  coasts,  the  territorial  laws  of  a  nation  are,  strictly  speak- 
ing, not  operative." 

The  waters  whi.h  he  prefers  to  call  •>terrilori.,l"  he  thus  de- 
scribes:  "If  a  sea  is  entirely  closed  by  tiie  territory  of  a  nation, 
and  has  n„  other  communication  with  the  ocean  than  by  a  chan- 
nel of  which  that  nation  ma,  take  possession,  it  appears  that 
such  a  se  .  .s  no  less  capable  of  being  occupied  and  becumi.,.. 
property  than  ,I,c  land.  In  the  san.e  manner  a  bav  of  the  sea^, 
thejdmres  of  which  are  the  territory  of  one  and  the  same  na- 


'Co 


ifn  rTi«>n  f  '1  rJ . 


■  \jt*%ti    t^a « 


«  'i-  i.  ch  a,  I 


:>   iu. 


I 


THE    NORTKKASTEU.N     FISHERIES.  , 

tion   andof  which   t!ie  entrance   may  be  effectuV'v  H.f      .    , 

WlWman  ,a,.s  .ha.  ...ha  s.a  Within  gunsho,  „    ^  '•f'^"'"''' 
cupi«i  b,  ,he  occupation  of  .he  coaf. "^  l',:  .e'':,  ':r'..Wh"- 

-  Xrat:x  ;;:i'::;^-r  i-i'fr- 

width  of  rivers  nr  m.  ^     u,  exceed  the  ordinary 

"iM  ui  nvers,  or  the  dcable  ranee  of  cannon       a..*i--    j 

wh.reco„„-„„ou,  possession  ends,  where    he  2l  M  "" 

-ch  .„..:  -taX-^ro/  :ir;os:X'tri: 
und  is,  .he.e,„.e,  .he  ..j. o/L:  ,^'1"  st"  Th:";:.^:; 

«iv>.iv      nroken   by  bays,  cau.s   ..fr       rf  fi, 
t.me  dominion  must  always   be   mc.  ure      /  """■" 

these  points  of  the  shore  Jr.  n  '"'"'"'^^  ^'^">  ^^^^--^  «"«^  of 
h.  fiT  f  :  ^°'^^' J^'^'--'^ '"'-"""vemencc  would  result  It 
has  therefore,  been  agreed  in  p.ctice,  to  dr..w  an  inn  n.rv 
hne  from  one  promontory  to  anotl,cr  and  tc  tai      the  li   cl      ,   . 


Law  o(  Nati 


ions,  vol.  I,  ch.x,§§, 7,-177. 


■aw,  vol.  I.  r> 


»  Institutes  of  Int.  L 
Free.*  du  Droit  de.  Ciens.  §^0.  (Kd.  iSr,^y 


'  Droit*  et  De 


voiri  dcH  Nations  Neut 


ro^. 


I'o'o.  i.  tit.  I.  ch.  J,g,. 


114 


THE    UNITED    STATES    AND 


adopted  by  almost  all  nations,  is  anly  applicable  to  small  bays, 
and  not  to  those  of  great  extent  which  are  in  reality  parts  of  the 
open  sea  and  of  which  it  is  impossible  to  deny  the  complete  as- 
similation with  the  great  ocean."* 

Kliiber  says,'  "To  the  territory  of  a  state  belong  those  mari- 
time districts  ana  regions  susceptible  of  exclusive  possession.  In 
this  number  are  the  parts  of  the  ocean  which  extend  within  the 
continental  territory  of  a  nation,  if  they  can  be  commanded  by 
cannon  from  the  two  banks,  or  if  their  entrance  only  can  be 
closed  or  defended  against  vessels.''  *  And  Ortojan  says :»  "^\  e 
should  range  upon  the  same  line  ,as  ports  and  roads,  gulfs  and 
bays,  and  all  indentations  known  by  other  names  when  these  in- 
dentaticns  made  in  the  lands  of  the  same  state  do  not  exceed  in 
breadth  the  double  range  of  cannon*  or  when  the  entrance  can 
be  governed  by  artillery,  or  when  it  is  naturally  defended  by 
islands,  banks,  or  rocks.  In  all  these  cases  we  can  truly  say 
that  the  gulfs  or  bays  are  in  the  power  of  the  nation  which  is 
mistress  of  the  territory  si    rounding  them." 

Baro  de  Cussy  examines  the  subject  at  great  length  and  after 
referring  to  many  authorities  says,'  "Sovereignty  over  the  terri- 
torial  waters  of  the  sea  reaches  as  far  as  the  range  of  cannon 
fired  from  the  shore.  The  sovereignty  also  extends  to  maritime 
districis  and  regions,  such  as  road=,  bays,  and  straits,  whose  en- 
trance and  exit  can  bt  defended  ty  cannon.  ♦  •  ♦  AUb.iys 
and  'traits,  however,  cannot  belong  through  their  entire  surface 
and  extent  to  the  territorial  sea  of  the  State  whose  shores  they 
wash.  The  sovereignty  of  the  State  over  large  bays  and  straits 
is  limited  to  the  distance  which  has  been  indicated  in  the  preced- 
ing rule." 

"Common  usnge,"*  says  Ileffter,  "has  established  the  range 
of  cannon  as  the  distai  ce  within  which  it  is  not  lawful  to  tres- 
pass, a  line  of  limit  which  not  only  obtained  the  suffrages  of 
Grotius,  .  f  Bynkershoek,  of  Galiana,  of  Kluber,  but  has  been 
adopted  by  the   laws  of    many   nations.     ♦     «     •     If  the  strip 

»  Droit  des  Gens.  §  130  (Ed.  1861). 

»  Diplomatic  de  la  Mor,  vol.  I,  p.  I4S-  * 

>  Pr^c!§  du  Droit  Maritime  des  Nations,  \<)l.  i,  lit.  J,  §§  40,  41. 

«  Droit  International  Public,  §  75-  7^  (Ed.  il^),  Bcrgvon.) 

*  The  italic*  are  mine. 


THE    NORTHEASTKRN    FISHERIES. 


115 


of  sea  which  washes  the  coast  is  considered  as  belonging  to  the 
contiguous  state,  it  follows,  for  even  a  stronger  reason,  that 
waters  connected  with  this  portion  of  the  sea  ought  to  be  under 
the  dominion  of  the  neij^hboring  State,  which  is  able  to  guard 
them,  to  defend  the  approaches  to  them,  and  to  hold  them  under 
its  exclusive  control.  Such  are  the  ports  and  harbors  which 
form  a  means  of  access  to  the  territory.  Some  nation*,  as  much 
by  an  extension  of  their  rights  as  for  other  reasons,  have  arro- 
gated to  themselves  a  kind  of  dominion,  or  at  best  exclusive  use, 
over  certain  pc'tions  of  the  high  seas.  Thus  in  England  they 
include  within  the  dominion  of  the  State,  under  the  name  of 
the  King's  Chamber,  the  bays  situated  between  two  prom- 
ontories."' 

Thus  we  fin«l  the  position  assumed  by  Great  Britain  sustained 
by  only  one  English  text  writer  "All  other  modern  jurists  of 
authority  agree  both  in  the  gciieral  principle  and  its  application 
to  the  particular  case.  Such  unanimity  exists  only  btcause  the 
principle  itself  is  not  arbitrary,  but  is  founded  upon  the  essential 
nature  and  necessary  elements  of  territorial  property  and  do- 


minion. 


"J 


The  moderr  rnle  which  limits  the  territorial  g-bt  to  the  dis- 
tance  of  a  cannon  shot,  or  three  marine  miles  from  the  shore, 
comes  from  Bynkershoek.  Thus  a  nation  claiming  jurisdiction 
over  its  marginal  waters  is  enalled  as  the  first  condition  of  valid 
appropriation  to  defend  and  protect  it  from  the  shore,  by  means 
of  artillery.  At  the  time  when  the  rule  became  fixed  in  inter- 
national law,  three  marine  mile^  was  the  ordinary  range  of  the 
cannon  in  use.  This  is,  of  course  now  greatly  extended,  but  the 
increased  power  and  effectiveness  of  modern  artillery  has  not  as 
yet  been  taken  into  consideration.  Bluntschli'  states  that  the 
three  marine  miles  aie  too  narrow, and  in  1864  the  United  States 
suggested  to  England  that  the  limit  should  be  five  miles.     Fiore 


•  The  treaty  *'etween  France  and  Great  Britain  dated  August  31  d,  1839, 
provides  that  the  subjects  of  each  pov  er  shall  enjoy  the  right  of  fishing 
within  three  miles  of  low  water  mark,  and  that  in  the  case  of  bays  of 
which  the  opening  shiiH  not  exceed  three  miles,  this  distance  shall  be 


Law  of  Nations,  vol.  i,  c.  x.  §  182. 

*  Am.  Law  Review,  vol.  v,  p.  406. 

*  Law  of  Nations,  book  4,  §  30J. 


ii6 


THE    UNITED   STATES    AXD 


says*  that  "la  zone  do  jurisdiction  pourrait  s'^trcndre  i  propor- 
tion des  perfectionnement  des  moyens  d'artillerie/' 

That  the  position  taken  by  the  United  States  on  this  question 
and  so  ably  defended  by  her  statesmen,  is  based  upon  sound 
principles  of  international  law,  is  evident  to  any  one  who  ap- 
proaches the  subject  free  from  preconceived  theories  and  na- 
tional sympathy.  That  3uch  is  f.he  generally  accepted  rule  of 
law,  is  beyond'dispute,  but,  in  view  of  the  increased  range  and 
efficiency  of  modern  artillery  and  oth.-r  engines  of  offensive  and 
defensive  warfare,  it  is  reasonable  to  suppose  that  at  some  time 
in  the  near  future  the  limit  will  be  extended.  But  the  words 
used  in  the  treaty  now  under  consideration  are  "three  marine 
miles"  from  the  shore  and  no  such  new  rule  can  be  adopted  and 
engrafted  on  the  treaty  by  the  mere  will  of  one  of  the  contract- 
ing parties. 

In  the  language  of  a  learned  Engli..  judge,'  "we  must  as- 
sume that  it  [the  treaty  of  1818]  was  drawn  by  able  men 
and  ratifi-.  i  by  the  governments  of  two  great  powers,  who 
knew  per.«;ectly  well  what  they  wers.  respectively  gaining  or 
conceding,  and  took  care  to  express  what  they  meant."  We 
must  also  assume  that  these  able  men  were  cognizant  of  the 
rules  of  international  lav/,  and  we  learn  from  the  testimony  of 
one  of  the  Commissioners  that  they  believed  that  the  United 
States  retained  for  its  citizens  "the  right  of  fishing  in  the  sea, 
whether  called  a  bay,  gulf,  or  by  whatever  term  designated, 
that  washed  any  part  of  the  coast  of  the  British  North  Ameri- 
can provinces,  with  the  simple  exception  that  we  did  not  come 
within  a  marine  league  of  the  shore." 

It  is  generally  admitted  that  whenever  under  the  law  of  na-. 
tion,  any  part  of  the  sea  is  free  for  navigation  it  is  also  free  for 
fishing.  Prior  to  the  treaty  the  American  fishermen  in  com- 
mon with  those  of  all  other  nations  could  fish  within  three  miles 
of  the  shore,  and  by  the  treaty  no  restrictions  arc  placed  upon 

this  na^-iral  right.  ,      r         • 

In  terrUorial  waters:  It  is  expressly  provided  that  the  Ameri- 


•  Vol.  I,  p.  373- 

«  Young's  Aiiiii.  iJcC.  p.  loo. 

«  See  p.  66,  supra. 


THE    NORTHEASTEKN    FISHEHIES. 


117 


can  fishormen  shall  have  forever  in  common  with  the  subjects 
of  Great  Britain  the  liberty  of  taking  .'sh  of  any  kind  on  that 
part  of  the  southern  coast  of  Newfoundland  which  extends 
from  Cape  Ray  to  the  Rameai'  Islands  and  on  the  western  and 
northern  coasts  of  Newfoundland  from  said*  Cipe  Ray  to  the 
Quirpon  Islands;  on  the  southern  shores' of  the  Magdalen  Is- 
lands, on  the  coasts,  bays,  harbors  and  creeks  Tom  Mount  Joly 
©n  the  southern  shores  of  Labrador  to  and  through  the  straits 
of  Belle  Isle  and  thence  northwardly  ind  litely  along  the 
coast.  "And  the  United  States  hereby  renounces  forever  any 
liberty  heretofore  enjoyed  or  claimed  by  the  inhabitants  thereof 
to  take,  dry  or  cure  fish  on  or  within  three  marine  miles- of  any 
of  the  coasts,  bays,  creeks  or  harbors  of  His  Britannic  Majesty's 
dominions  in  America  not  included  in  the  above  mentioned 
limits." 


RIGHT  TO  ENTER  HARBORS   ANu   BAYS   FOR 
PURPOSES  OTHER  THAN      ISHING. 

TO   TRY    AND    CURE    FISH. 


The  American  fishermen  have  the  right  forever  to  dry  and 
cure  fish  in  any  of  the  unsettled  bays,  harbors,  and  creeks  in  "^he 
southern  part  of  Newfoundland  from  Cape  Ray  to  the  R:  u 
Islands,  and  of  the  coasts  of  Labrador,  while  the  same  renuuiis 
unsettled;  but  in  any  portion  so  settled  it  is  necessary  to  obtain 
previous  permission  from  the  inhabitants,  proprietors  or  posses- 
of  the  ground. 

>  The  word  shore  is  used  here  instead  of  coast  as  elsewhere.  Shore 
has  a  definite  legal  meaning,  and  describes  that  part  of  the  riparian  soil 
which  lies  between  high-water  and  low-wa*e»'  and  which  is  covered  bj 
the  ebb  aud  flow  of  the  tide.  The  fishermen  n.ay  use  the  shores  when 
exposed.    See  Angell  on  Tide  Waters,  pp.  33-35. 


iiS 


THE    UNITED    STATES    A  NO 


FOR    THE    PURPOSE    OK    OUTAIMNG    WOOD    AND    WATER 
AND  FOR  bJIELTER. 


It 


.ly 


ided  that  the  Ar 


IS  expressly  provided  tnat  tne  American  fishermen  shall  be 
permitted  to  enter  all  bays  and  harbors  for  the  purpose  ol  shel- 
ter, of  repairing  damages,  of  purchasing  wood,  and  obtaining 
water,  "and  for  no  other  purpose  whatever."  But  they  are  to 
be  under  such  restrictions  as  shall  be  necessary  to  prevent  their 
taking,  drying,  or  curing  fish  thei  ,in,  or  in  any  other  manner 
abusing  the  privileges  secured  to  them. 

These  privileges  are  expressly  gram  d,  and  all  others  claimed 
must  be  either  implied  in  them,  or  based  upon  the  theory  that  the 
United  States  possesses  all  rights  not  expressly  renounced,  or 
upon  the  comity  of  nations,  or  as  commercial  privileges 

Soon  after  the  ratification  of  the  treaty  a  controversy  arose 
over  the  construction  of  the  clause  allowing  the  fishermen  the 
right  to  enter  bays  and  harbors  for  the  purpose  of  shelter.  The 
Provincial  authorities  gave  this  clause. a  very  narrow  and  inhos- 
pitable construction,  limiting  it  to  vessels  in  actual  distress, 
while  the  United  States  fish  rmen  claimed,  very  reasonably,  that 
they  were  entitled  to  enter  tiie  poi:>  for  shelter  whenever,  by 
reason  of  rough  weather,  fogs,  or  calms,  it  was  impossible  or 
inconvenient  to  pursue  their  labors  outside.  The  evident  rea- 
sonableness and  justice  of  this  construction  of  the  language  o^ 
the  treaty  is  a  sufficient  reason  for  its  adoption  by  anyone  not 
controlled  by  a  desire  to  harass  and  annoy. 

An  attempt  was  also  made  to  limit  the  exercise  of  the  right 
to  enter  for  the  purpose  of  obtaining  wood  and  water  to  in- 
stances in  which  the  supply  brought  from  the  ht)me  ports  had 
become  exhausted.  This  was  one  of  the  questions  submitted  by 
the  Legislature  of  Nova  Scotia  to  the  Law  otTicer^  of  the  Crown 
in  1841  '  and  it  was  by  them  given  a  more  liberal  construction. 
"By  the  convention  the  liberty  of  entering  the  bays  and  har- 
bors of  Nova  Scotia  for  the  purpose  of  obtainiii<^  wood  and 
water  is  conceded  in  general  terms,  unlimited -by  any  rcstrict- 

'  •  See  p.  65, 


THE    NUi;  rilKASTF-liX    FISHKKIK>. 


119 


ions  express  or  implied,  Hni'tiiig  the  enjo\  nicnt  to  vessels  duly 
provided  with  these  articles  at  the  commencement  of  their  voy- 
age, and  we  are  of  ♦ihe  opmion  that  no  such  condition  could  be 
attached  to  the  enjoy meiit  of  the  liberty."  Consequently  we 
may  consider  this  dit"ficulty  settled  as  far  as  it  can  be  settled  by 
reason  and  authority.  The  United  States  fishing  vessels  may 
enter  the  bays  and  haibors  of  Canada  to  'htain  wood  and  water 
whenever  they  ar2  in  need  of  th  .-e  articles. 

To  require  these  small  vesse'         bring  with  them  supplies  of 
wood  and   water   sufficient  for  voyage   would   completely 

nullify  the  treaty  and  destroy  value  of   the  fishing  rights. 

They  may  al-o  etr  .:  and  lie  a'  '.nchor  for  a  reasonable  tmie 
whenever  fishing  outside  is  im[)ossible  or  difficult,  even  when 
not  compelled  to  seek  safety  from  actual  destruction  evident  to 
all.  When  the  fishermen  enter  the  bays  and  harbors  for  legiti- 
mate purpose  ,  it  is  perfectiv  proper  for  the  local  authorities  to 
exercise  supervision  over  them  in  ordt-r  to  prevent  a  violatio 
of  the  treaty.  Thus  it  is  proper  for  them  to  send  an  officer  on 
board  a  vessel  to  remain  there  until  it  departs,  as  a  means  of 
placing  temptation  beyond  the  reach  of  the  fishermen.  But 
when  the  Provinciil  authorities  order  the  vessel  to  leave  within 
twenty-four  hours,  or  immediately,  they  are  committing  a  viola- 
tion of  the  treaty  as  serious  as  any  within  the  power  of  the 
fishermen.  These  fishermen  are  in  express  terms  allowed  to 
enter  the  ports  for  certain  purposes,  and  any  law  which  denies 
them  the  right  is  null. 


for    the      ;  rpose    ol     procuking    bait;    pkeparing    1  ■ 

fish;  cleaning  and  packing  fish;  sell'ng  gouds 

and  purcriasino  supplies;  la-,ding  and 

trans-shipping  fish. 


The  right  to  enter  harbors  for  the  purpose  of  bartering  for 
or  purchasing   bait   for  use   in  the   deep  sea  fishing   has  been 


^.......ww.   ..^    v>>..    {^v>«  LI  iiiiiciii     uTiuvi     iTiC     Ileal), 


1  IMS    Claim    19 


based  on  the  ground  that  as  the  treaty  had  reference  to  inshore 
fishing  only  and  that  as  t'     Jeep  sea  fishii- ,;  was  in  no  v>  ay  under 


I20 


THE    UNITED    STATES    AND 


consideration  it  could  not  have  been  the  intention  to  exclude 
vcEJels  engaged  in  that  kind  of  fishing  alone  from  the  ordinary 
commercial  privileges  accorded  to  vessels  engaged  in  other 
branches  of  commerce. 

The  American  claim  and  the  grounds  upon  which  it  rests  are 
well  set   forth  by  Mr.   Phelps  in  a  letter  to  Lord  Rosebery, 
dated  June  2,  1886,'  as  follows:     "Recurring,  then,  to  the  real 
question  in  this  case,  whether  the  vessel   is  to  be   forfeited  for 
purchasing  bait  of  an  inhabitant  of  Nova  Scotia,  to  be   used   in 
lawful  fishing,  ft  may  be  readily  admitted  that  if  the  language 
of  the  Treaty  of  1818  is  to  be  interpreted  literally,  rather  than 
according  to  its  spirit  and  plain  Intent,  a  vessel  engaged  in  fish- 
ing would  be  prohibited  from  entering  a  Canadian  port  'for  any 
purpose  whatever'  except  to  obtain   wood  or  water,  to  repair 
damages,  or  to  seek  shelter.     Whether  it  would  be  liable  to  the 
extreme  penalty  of  confiscation  for  a  breach  of  this  prohibition 
in  a  trifling  and  harmless  instance  might  be  quite  another  ques- 
tion.    Such  a  literal  construction  is  bett  refuted  by  considering 
its  preposterous  consequences.     If  a  vessel  enters  a  port  to  post 
a  letter,  or  send  a  telegram,  or  to  buy  a  newspaper,  to  obtain  a 
physician  in  case  of  Illness,  or  a  surgeon  in  case  of  accident,  to 
land  or  bring  off  a  passenger,  or  even  to  lend  assistance  to  the 
inhabitants  in  fire,  flood,  or  pestilence,  It  would,  upon  this  con- 
stnictlon,  be  held  to  violate  the  treaty  stipulations,   maintained 
between  two  enlightened  maritime  and  most  friendly  nations, 
whose  ports  are  freely  opened  to  each  other  In  all   other  j^laces 
and  under  all  other  circumstances.     If  a  vessel  is  not  engaged  in 
fishing  she  may  enter  all  ports;  but  If  employed  in   fishing,   not 
denied  to  be  lawful,  she  is  excluded,  though   on  the  most  inno- 
cent errand.     She  may   buy   water,  but  not   food  or   medicine; 
wowl,  but  not  coal;  she  may  repair  rigging,  but  not  buy  a  new 
rope,   though   the    inhabitants  arc  desirous  to  sell   it.     If  she 
even  entered  the  port  (having  no  other  business)  to  rep'^rt  her- 
self to  the   custom   hcv.sc,       •      •       •      she  would   be  equally 
within   the  Interdiction  of  the  treaty.      •      •     •     It  seems  to 
5^.-  r!„ar  that  the  treaty  must  be  construed    in  accordance   with 
those  ordinaiy  and  well  settled  rules  applicable  to  all  written  in- 


«  Ex.  Doc.  No.  19,  4yth  Cong,  mtl  Ses*. 


THE    NORTHEASTKRV    FISHERIES. 


121 


Zn7T-\  "^.l      "'"'^""'  ''''^  '^'"^'-^^^  ''''^«'^^^"«   -"«t  con- 
stantly fail  of  the.r  purpose.    By  these  rules  the  letter  often  gives 

way  to  the  intent,  or  rather  is  only  used  to  ascertain  the  i./tent. 
Thus  regarded,  it  appears  to  me  clear  that  the  words 
for  no  other  purpose   whatever,'  as    employed  in  the  treaty- 
mean  no  other  purposes  inconsistent  with  the  provisions  of  the 
treaty,  or  prejudicial  to  the  interests  of  the  provinces  or  their 
inhabitants     and    uere    not    intended    to  pievent  the  entry  of 
American  fishing  vessels  into  Canadian  ports  for  innocent    and 
mutually  beneficial  purposes,  or  unnecessarily  to  restrict  the  free 
and  friendly  intercourse  customary  between   all  civilized   mari- 
^me    natrons,   and    especially    between  the   United  States  and 
Great  Britain.     Such,  I  cannot  but  believe,  is   the  construction 
If^u^ce  "       ^  "^""  '^''  ''""'^'  ^y  "">'  -nJightened  court 

Since    1818    important    changes    have    taken    place    in    the 
methods  of  fishing  in  the  regions  in  question,  which  have  ma- 
terially modified  the  conditions  under  which  the   business    of 
mshore  fishing   is  conducted,  and  it  is  but  reasonable  that  this 
oe  taken. nto  consideration  in  any  present  construction  of  the 
treaty.     Drying  and  curing  fish,  for  which  the  use  of  the  adji- 
cent  coasts  was  at   one  time  essential,  is  now  no  longer  fol- 
lowed.     xModern    inventions    for    artificial    freezing    and    fhe 
employment  of  vessels  of  a  larger  .ize  now  permit  the  catch 
and  direct  transportation   of  fish  to  the  home  markets  without 
recourse  to  the  contiguous  shore. 

The  mod.  of  taking  fisi,  in.hore  has  also  changed,  and  .ince 
the  introduction  of  purse-seines,  bait  is  no  longer  needed  for 
such  fish.ng.  By  means  of  the  purse-seines  mackerel  are  now 
caught  in  deep  waters  entirely  exterior  to  the  three  mile  line. 

As  It  IS  admitted  that  the  deep  sea  fishing  was  not  under  con- 
sideration in  the  negotiations  of  the  treaty  of    iS.S,  nur  was 
affected    thereby,   and    as    bait   for    inshore    fishing    is   going 
argeiy  out  of  use,  the   reasons    which    may    have'   formerly 
existed   for  refusing  to  permit    American    fishermen    to  pro 

cure  bait  within  the    hne  o*  » -^  -  -.  ^ 

*„_   .         .,  ,       ..  "   •^••b"«-   ii"iii   iiie  shore 

for  fear  they  should  use  it  in  the  same  inhibited  waters  for  the 
purpose  of  catching  fish,  no  longer  exists.  Consequently  it  is 
claimed  by  the  American  government  that  to  prevent  the  pur- 


,j,  THE    UNITED    ST.\TK,    .vND 

,  I    •,      ,    „.v  Other  si.ppl/  needed  m  deep  sea  fi.hiiig, 

"      ,a  be  To  exlid    h«  eonvLionto  object,  wholly  beyond 
rpnr':::  ,::■;,  »..  in.e„..  and  .o  give  1.  an  eSee.  neve, 

"t;:'v-::'is  Lt-eCd  .»  ..  cer..n  extent  .ranted  by  the 
Thi>  ^  i^.^*  1  F  J  ,(,5  ,„„.s  passed  for 

BHtlsh  g°-T::;  ;'^  *, ;f,tw  into  effect,  to  n,ake  provision 

T  TTalV  uch  Ics'nl  ga   and  providing  any  penalty  there- 

:;     Ne  h!r  thtl^lperlaf  Act  nor  the  several  Provincial  Acts 

rn.air:ny  pvi  Jn  declaring  "-.-;-- CTot 

"euf  while  this  claim  may  be  sustained  with  some  show  of 
.11  .hould  not  be  insisted  upon  as  a  right.     If  claimed  at 
success  It  shouia  noi  uc  j.j  „„„„  the  dutv  of  "good 

.11  it  should  be  as  a  privilege  founded  upon  the  duty  or     g 

•  LT„™1"  and  the  obligation  of  international  comity.    It 
„e.ghborho<Ki     and  the  ^^^_„.,^,,„„,„  „h„  signed  the 

r  .  th  ^Ameri  an  fishermen  should  have  .he  privilege 
treaty   that  America  ^.  justify  an  appeal 

;The  To^  .  th'o  The  panies,  and  if  Canada  is  unwilling  to 
res'p"„l°the  only  remedy  is  the  reftisa-  to  |;-  -o.  or  sim. 
lar  commercial   privileges  to  her  %essels  in  p 

United  States. 


COMMERCIAL   PRIVILEGES. 

At  the  present  time  the  question  of  ^in^  rf^/./.i-'^lmost 

t ,        •      1  no  with  the  question  of  commercial  frivi- 

r"'::;hrH:.erIa:    bet  injudiciously  demanded  a.  right, 

trr;  leHc::,  without  the  slightest  foundation    in   law 

The  United  State,  has  no  commercial  treaty  with  Gr...t  Brit 


X    iUV,i«»«>'»-» 


>  U.  S.  Stilt,  at  Large,  vol.  4,  p  4i7- 


Til.       VORTHKASTER.V    Hsli;   U1K>. 


123 


American  vessels  were  eiU.tled  to  no  commercial  privilecres  in 
British  colonial  ports.  " 

At  the  time  ox  the  Treaty  of  17S3  it  was  the  policy  of  Great 
Britain  to  exciude  all  foreign  vessels  from  her  colonial  ports  on 
this  continent.  The  Treaty  of  1794  declared  Lhat  as  to  commer- 
cial privileges  it  should  not  'extend  to  the  a  mission  of  vessels 
of  the  United  States  into  the  seaports,  harbors,  bays,  or  creeks 

His  Majesty's  said  territories  "  in  America.  This  policy  was 
continued  until  after  the  ci  ..  of  the  war  of  181 2,  when  the 
United  States  attempted  to  counteract  it  by  retaliatory  legisla- 
"on.  The  treaty  of  1815  aeclared  that  "generally,  the  "mer- 
chants and  traders  of  each  nation,  respectively,  shall  enjoy  the 
most  complete  protection  and  security  for  their  commerce,^/ 
subjeci  always  to  the  laws  ayid  statutes  0/ the  two  countries  re- 
spectively. " 

Non-intercours     laws  were  passed  by  Congress  in  18 18  and 
again   in   1820,  the   latter  of  which  excluded^all  British  vessels 
arriving  by  sea  from  any  place  in  L  nver  Canada,  New  Bruns- 
wick, Nova  Scotia,  Newfoundland,  St.  Johns,  Cape  Breton,  or 
any  of  the  British  Colonies  on  the  continent.     In  1822  Great 
Britain  passed  a  law  permitting  American  built  vessels  to  im- 
port certain  goods  directly  to  the  West  Indies.     The  following 
year  the  United  States  met  this  favor  by  suspending  the  laws  of 
i8i8   and   1820  in  respect  to  certain  British  ports,  and  authoriz- 
ing the  direct  importation  of  colonial  produce  thf^refrom  on  con- 
dition  that    similar   privileges    be    granted    American   vessels. 
Much  irritation  grew  out  of  these  laws,  res-ilting  in  the  closing 
of  the  British   ports  in  1825  end  the  American  'ports  in  1827. 
Great  Britain  objected  to  the  language  of  the  '       of  1S23.'    The 

>  The  following  statement  of  the  history  of  that  legislation  was  given 
by  Senator  Smith,  of  Maryland,  in  the  Senate.  -During  the  session  of 
1822  Congress  was  informed  that  an  act  was  pending  in  Parliament  tor 
the  opening  of  the  colonial  ports  to  the  commerce  of  the  United  States. 
In  consequence,  an  act  was  passed  authorizing  tlie  President  (then  Mr. 
Monroe),  in  case  the  act  of  Parliament  was  sati>factory  to  him,  to  open 
the  ports  of  the  United  States  to  British  vessels  by  his  proclamation. 
Th»  act  of  Parliament  was  deemed  satisfactory,  and  a  proclamation  was 

■ccordintrlv    IssUL'd    a"d    f^""    ^--iJ"    .-/^■t>i...«r.,^...l        !'_/».> ._!..    »__     

commerce,  and  I  think  contraiy    to  justice,  a  Treasury  circular  issued 
tilrecting  the  collectors  to  charge  British  vessels  entering  our  ports  with 


•H 


THE    UNITED    STATES    AND 


nuesticn  was  much  discussed  during  the  p-csidcntial  campaign 
that  resulted  in  the  election  of  Jackson.  The  oPPO"^"ts  <)f 
President  Adams  charged  that  the  negotiations  had  fa.led  be- 
cause of  the  blunder  of  the  administration  in  claiming  the  admis- 
sion of  American  vessels  into  Canadian  ports  as  a  right  instead 
of  soliciting  it  as  a  privilege.  Upon  the  accession  of  Jackson, 
his  Secretary  of  State,  Van  Buren,  was  instructed  to  reopen  ne- 
eotiaiions  and  try  to  secure  the  coveted  ..rivilege.' 

He  was  successful  and  on  October  5th,  1830,  Fresiden  Jack- 
son issued  his  proclamation  declaring  the  ports  of  the  Unit.d 
States  open  to  British  vessels  coming  from  all  colonial  ports  on 
or  near  the  American  continent.  The  Canadian  auth.  es 
claim  that  they  have  not  violated  tb.e  arrangement  ot  ifiSv  oe- 
cause  they  have  withdrawn  commercial  privileges  irom  fishing 
vessels  only.  But  this  position  is  not  tenable.  No  pa-^cular 
kind  of  vessels  was  nancd  aiul  1.0  qualifying  words  were  used 

The  proclamation  included  all  craft,  recognized  as  vessels  by 
the  United  States,  that  i.,  all  thu.c  uf  five  tons  burden  and  up- 
wards, having  licenses;  those  of  twenty  tons  and  upwards  hav- 
ing enrollments;  and  tho.e  possessed  of  certificates  of  registry, 

the  alien  t;;;;^ge  and  dis^^mn^^^^^i^uties.     This  o. 'er  was  remon- 
trated  against  by  the  British  Minister  (l  think  Mr.  '.  .ughan).      The 
trade  however,  went  on  uninterrupted.     Congres.  met  ar.d  a  bi  1  was 
drafted  in  1823  by  Mr.  Adams,  then  Secretary  of  State,  and  passed  both 
Houses,  with  little,  if  any,  debate.     I  vot.d  for  it,  believing  that  it  met,  in 
the  spirit  of  reciprocity,  the  British  Act  of  Parliament.     This  bill,  how^ 
ever  contained  one  little  -vord,  '  elsewhere,'  which  completely  defeated 
all  ou    expectations.     It  was  noticed  by  no  one.     The  effect  of  that  word 
.  ehewhere'  was  to  assume  the  pretentions  alluded  to  in  the  instructions 
to  Mr  McLane.     The  result  was  that  the  British  Government  shut  their 
colonial  ports  imn,ediatcly,  an<^   thenceforward.     This  act  of  1822  gav. 
U8  a  monopolv  [virtually]  of  the  Vest  India  trade.     It  admitted  free  of 
duty  a  variety  of  articles,  such  as  Indian  corn,  meal,  oats,  peas^  and  beans. 
The  British  Government  thought  we  entertained  a  belief  thatthey  could 
not  do  without  our  produce,  and  by  their  acts  of  the  .,th  of  June  and  Jth 
of  July,   .825,  vhey  opened  their  ports  to  all  the  world,  on  terms  far  less 
advanugeous  to  the  United  States  than  those  of  the  ac   of  1.22 

\  Thetnstructions  given  McLane  by  Van  Buren  led  to  the  rejection  of 
Van  Buren'8  nomination  as  Mi.nister  to  England  in  1832,  on  the  ground 
»K».  h.  h.ad  adoDted  the  British  side  of  the  question  and  injected  the 
result  oi  a  Presidential  election  into  a  diplomatic  nefeotiation. 


THE     NOitTllKASTEHN     1  ISUERIES. 


125 


legally  issued  and  in  force.  In  1S38  Mr.  Justice  Story  held 
that  under  the  statute  a  registered  vessel  was  not  entitled  to 
carry  on  the  whrde  fishery  as  an  American  vessel,  or  to  the 
privileges  of  an  American  vcsscl»  but  this  was  at  once  recog- 
nized as  a  defect  and  cured  by  Act  of  Congress  of  April  4,  1840. 
Certificates  of  registry  are,  as  a  rule,  required  from  vessels 
engaged  in  foreign  trade  and  permitted  to  those  engaged  in  do- 
mestic trade.  Vessels  of  twenty  tons  burden  rnd  upwards, 
'nrolled  in  pursuance  of  law,  and  having  a  license  in  force,  are 
".'ssels  of  the  United  States  entitled  to  the  privileges  of  vessels 
-•ngaged  in  the  coasting  trade  and  the  fisheries. 

The  same  qualifications  and  requirements  are  for  registry  as  for  en- 
rollment. If  vessels  are  to  be  coasters  or  fishers,  they  must  be  licensed, 
and  only  for  one  >ear,  and  cannot  carry  on  any  other  business  unless 
another  document  has  been  obtained  from  the  Treasury,  which  is  a  per- 
mit "to  touch  and  trade."  A  registered  vessel  cannot  be  licen-^ed  to 
carry  on  the  North  Atlanti.  fisheries,  hut  she  ma_\  carry  on  such  fisheries 
without  a  license.  Enrolled  ves-sels,  having  a  license,  may  generally  go 
from  one  of  our  ports  to  another  without  <:-.;ry  or  clearance,  but  regis- 
tered vessels  must  enter  and  clear.  A  r..  tored  vessel,  carrying  on 
whale  fishery,  may  enter  foreign  ports  for  •  Ic.-,  but  a  whaler  only  en- 
rolled and  licensed  cannot  thus  enter.  N  .  ,ol  from  a  foreign  port  can 
enter,  and  unload,  excepting  at  ports  desi^^nited  by  Congress;  nor  can 
merchandise  iome  in  vessels  of  less  burden  than  thirty  tons,  and  the 
cargo  must  be  accompanied  by  a  manifest,  whii.h  must  be  exhibited  to 
the  prst  boarding  otTicer,  and  again  on  entry.  If  an  American  vessel, 
licensed  for  fishing,  shall  be  found  within  three  leagues  of  our  coast  with 
foreign  goods  on  board  of  greater  value  than  :J5oo,  she  is  liable  to  forfeit- 
ure with  all  her  cargo,  unless  possessed  of  4  permit  "to  touch  and  trade" 
at  foreign  ports,  and  then  she  ifiust  r--,'ularly  enter,  surrender  her  per- 
mit, pay  duties,  and  be  subject  to  all  regulations  for  vessels  arriving 
from  foreign  ports. 

We  separate  American  vessels  Into  subdivisions,  as  by  registry,  by 
enrollment  and  license,  by  license  I'lcasure  kk  hts  make  another  sub 
division.  Rut  foreign  governmcnr,  cannot  say  that  a  vessel,  regularly 
documented,  is  by  reason  of  hci  class,  not  an  American  vessel.  The 
classifications  rL-fcrred  in  the  Segiiining,  and  reft-r  now,  chiefly  to  fees, 
tonnage  taxes,  entrance  and  ieir.iTuc.  production  of  manift'sts,  passen- 
ger-lists, oaths,  unlading,  aiui  similar  things,  when  our  vessels  arc  in 
our  own  ports.     Ferry  boats  arc   .\merii  an   vcsscN,  but  they  need  not 


from  district  to  distt'ct  is,  as  to  clear. inie  and  entrance,  subject  to  the 
same  rules  as  vessels  under  finntKr  license  and  cnnillttient,  jmd,  on  tiie 
other   hand,  a   licensed   and  (.■luilU-d   vessel  touiliing  at  a  (uieign  port. 


126 


THE    UNITIO    STATtS    AND 


does  not  thereby,  become  subject  to  our  tonnage  duty,  nor  to  clearano 
and  entrance  fees  as  if  fro.n  a  foreign  port.  U  is  fo'  our  own  I'nven- 
cnce  that  vessels  are  classified  as  fishermen,  inasmuch  as  our  la  "on- 
trol  bj.  mmute  regulations  the  business  of  fishing  in  respect  to  contrar?. 
with  those  so  employed.  The,  punish  fishernL,  who  de  ert  andr'^ 
the   la        ^r"  IV'-'  ''^'^'""   °'  ''''  P^°"^'^^  °^  "^^-  "'ch.  bu    n"     '  o 

17J^  'Z\  T"''  ""'"'''''  "''^■^'  ^''^^'"  'h«-'  -°""rted  legis  at  on 
of  1830,  and  Pres.dent  Jackson's  proclamation  of  that  ,ear,  are  entiled 
to  commercial  privileses  in  Canadian  ports.' 

There  can  be  no  question  that  the  Canadian  statute  of  No- 
vember 1SS6,  authorising  the  search  and  forfeiture  of  United 
States  fishmg  vessels,  is  a  withdrawal  from  American  fishermen 
of  commercal  privileges  such  a,  are  enjoyed  by  Canadain  fish- 
ermen m  the  ports  of  the  United  States. 

While  the  right  claimed  of  bringing  to  and  searching  fishinc. 
vessels  suspected  of  the  intention  of  violating  the  treat;,  may  b^ 
offensue  as  a   revival   of  the  ancient   British  "hovering  act - 
yet,  .f  the  search  be  fairly   conducted   and    under  circunltanies 
from  which    he  intention  to  fish    may   be   rersonably  suspected. 
It  may  be  tolerated,  as  the  custon^s  laws  of  the  United  States 
authonze  such  searches  of  vessels  four  leagues  from  the  shore/ 
But  the  law  was  passed  avowedly  for  the  purpose  of  author- 
zmg  the  forfeiture  of  fishing  vessels    entering   Canadian   ports 
or  the  purpose  of  purchasing  bait,  ice  and   other   supplies,  and 
or   any   purpos^e   other  than   shelter,   repairs,  wood  and  water. 
Leg.sIat.on  of  this  character  operates  as  a  repeal  of  the  arrange- 
ment o     ,830,  and   to  that   repeal   the   United   States  can  only 
respond  by  a  similar  repeal  of  our  own  laws  and  by  a  refusal  to 
confer  hospitalities  or  privileges  on  Canadian  vessels  or  boats  of 
any  kind  m  our  ports.     ^^  A  violation  of  con.it v  nu.y  be  looked  on 
as  an  unfriendly  act  but  ..ot  as  a  cause  for  a  just  war.      En-^land 
may  judge  for  herself  of  the  nature   and  extent   of  the  comitv 
and  courtesy  she  will  show   us.      Im   the   present  case    we  don't 
propose  to  reta!=atc;  we  simply  respoiul,  ue,  too,  suspend  comity 
and  hospitality." '  ^ 


'  Reply  of  Secjr.  Manning,  Fchy.  5,  1887. 


W< 


urndof  Mr  L.  Jenkiim. 


-' '  \-<o"/-      •  "■    ""   tuiDuni   of   'tu 

ikilm.   vnl     }     nn    Ti        ..  <u     >u.. 


■See 


i.ranu  »   v>  neaton \  ln(    Law 


Int.  Law   tt  iTo 


THK    NORTJ1KA5,TI:rN    HSMEHIES. 


127 


This  is  the  only  remedy  for  the  denial  of  commercial  privi- 
leges, among  which  I  class  the  privilege  of  entering  Canadian 
ports  for  the  purpose  of  purchasing  or  selling  bait,  goods,  mer- 
chandise, or  supplies  of  any  kind,  and  landing  and  trans-shipping 
fish  overland  to  the  United  States. 


THE    RIGHT   TO    NAVIGATE    T     E   GUT   OF   CANSO. 


The  denial  of  the  right  to  iui\  igatt-  the  Gut  or  Strait  of  Canso  is 
a  matter  of  the  most  vital  importance  to  the  American  fishermen. 
They  claim  no  right  to  fish  in  the  Strait,  hut  as  the  Atlantic  Ocean 
and  the  Gulf  of  St.  Lawrence  which  it  connects  are  both  free 
to  them,  they  have  the  right  to  pass  through  it  in  going  cither 
way.  In  order  to  reach  the  Gulf  of  St.  Lawrence  it  is  practi- 
cally necessary  to  pass  through  t'.iis  .str.iit,  and  according  to  the 
rules  of  international  law  recogni/ed  by  the  United  States,  it 
cannot  permit  this  passage  to  be  closed.  "  Straits  which  serve 
as  a  means  of  communication  between  two  seas  "  savs  Heffter.' 
"should  be  regarded  as  free  and  common  to  the  use  of  all  na- 
tions, when  they  can  be  passed  by  vc-cls  beyond  the  range  of 
cannon  placed  upon  the  ailjaccnt  shores.  If  this  is  impossible, 
the  strait  will  be  subject  to  the  sovereignty  of  the  riparian  state. 
Nevertheless,  it  is  agreed  that  no  one  people  can  prevent  others 
from  the  innocent  use  of  these  channels  of  c<Hnniunication." 

The  ru'e  is  thus  stated  by  Ortolan:-  '•Str;;it>  are  passages 
communicating  from  one  se.i  to  another.  If  the  use  of  these 
seas  is  free,  the  coniii  iiications  ought  to  br  equ.illy  free;  for 
otherwise  the  liberty  of  thesi  au.  seas  wouM  only  be  «  chimera. 
It  is  not  sufficient,  therefore,  in  order  that  propcrtv  in  a  strait 
may  be  attnbuteil  to  ition  mistress  of  its  'chores,  to  sa\  that 
the  strait  is  actually  pou  er  of  this  nation,  tliat   it   has  the 

means  of  controlling  passage  by  its  artillery  or  by  any  othei 

mode  of  action  or  defc  u^e;  in  a  word,  that  it  is  able  to  have  the 
waters   really  in  it-  ni-^P-io.,.     Tlic   snateria!  objects  to  pro- 

'  Droit  Internationa!  I'liblii. 

•  Diploinatie  de  la  Mir,  torn  ufi. 


12S 


THE    UNITED    STATES    AND 


exist  over  such  strait,   hL  sovereign  empirt  cannot 

certain  rights  ereSns,?;::  Tr"  "^"'"^  '"P""-  «■-• 
>-  reco,„i.ed  h,  inter:  io,  f  'Vh  fTf Vr°'  -' 
such  that  the  vcssek  wh:.K         •  ,  '        *^^  ^^""^'^s  ^re 

along   the  cort    V  -th  ""■'^'''  ''^'"  ^""^  °^^'^^^   ^°  P-« 

state  which  no    .  ^  """«"-^"S-'  ^^e  cannot  refuse  to  the 

of     e"u    Ir:  r  *'^'".'^°^^^^  ^^^^  --'^^ht,  for  its  own  security 

pilots   or  bv ?K  ^  ^.    '  accomplished  by  the  aid  of  skillful 

andVcCn  by  :::i:.^'^^  ^^^"^^"  ''-'''-  '^'-  «-^ 

na^rirrt!'^  ^"'^  ;r  -^^-P^-^^language:^  ^If  .he 
of  the  ch.  nn el  b  V '  7".  "  ""''''''''"^  '^  ^^^^'  ^^e  navigation 
free      Ev  n    V-    ''''"''  '^'^'y  ^^  <^on"-ted   ought  also  to  be 

terHtory  of  th  ''"''    '^    '^""'^'^^  '^^  ^°  ^^  -'d-  by  the 

row  asl  be       """'  r"""»"'  ^"'  ''''  ^he  same  time  so  nar 

exlsv"      r^rt  i  d^^-^""°r'"^^°'"  '°^^  ^^--'  ^^« 
strait  is  contra  terbvh."%u'''  '°^"^^'^"  ''^^^    -^h 

wjth  the  srtts  ::.:e:ti"^  ^'  "'^^  -"^^-^  ^  ---^^^-^^ 

'o8.  33d   Cong..   ..t  Sess      Benton  sThm'  y"^     v""    "^^  ^"'^-  ^°- 
Woolse/s  Int.  Law.  §  c,  ■  Nor"hTm    rI'  ,^^*"  ^ '«^^.  vol.   ..  p.  362; 

Elem.  Int.  Law  (Dana),  p   .^^  °''''  ^"'-  *'  P"  '»"^'  ^Vheaton'^ 

*  Elem.  Int.  Law,  p.  36a. 


THE    XOnTIIIJASTEKN-    FiSilKKIi..,. 
PROVINCIAL  CONSTRUCTION  OF  A  TREATY. 


129 


whTch  do  nnVT         r""^'"  ^"'^  ^"'^^  '''  international   law 
t^a  fh    .  '  °^  argument.     One  uf  the  n.ost  axiomatic  is 

tha   thetreaty  making  power  of  Government  i.  the  po.  h  Lh 

th  i::t7"Th;'^  "'^;  ^^"^^^'^-^^  ^--^  ^-  '"^--•-  o' 

tne   t  eaty      The  organ  of  a  government  which  is  char-^ed  with 
he  admm.trat.on  of  its  foreign  affairs  is  to  be  .ddressed  bX 

stateorfed''T      "     r^'^"'"'"'^^ 

s  ate  or  federal,  cannot  be  .et  up  as    a  defense  to  a  charc^e    o 

v^atmg  a  treat,.     Consequently  the  claim  of  Canada   to  con 
stn^e  a  treaty   contracted   between  the  United  States  and  Great 
Br  tarn  because  she  is  peculiarly  interested  and  because  the  con 

t:te7r;Gr:r-r- ''^"^'  '^ '-  ''-^y  ^-  ^--  ^^^^ 

nation      N  fth      T  ^  ''"• "  '^'^"^^  °"^>'    ^°  ^"    independent 

claim  of  rilh^  .  ^  P°''"'  ""    "°"'"^^  ^  ^^^^^v,  the 

cla.m  of  nght  to  construe  one  contracted  between  the  sovereic^n 

sett  cirm'?:  '"'-T  ''  P^^P-^—  As  well  might  Massach^- 
Ctur  of  S  T  ""^  '°  T"  '"^^P-^^-^  negotiations  with  the 
Cou  tof  St.James  as  Canada  with  the  United  States.  Both 
lack  the  essential  element-sovereignty 

Grla'l'B^if '?'''"  '"  ''"^^'^  ^"'^^^^^  ^^e  responsibility  of 
SLI!  K.  ^"'"""^  '"'"^^'°"  °^  ^h«  fishery  treaty  and 
th«respons.b.hty  was  accepted  by  Great  Britain  in  the  Fortune 
WoTh      ",       f  '':'^^^however,to  add,"  wrote  Earl  Kim! 

b.hty  of  determmang  what  is  the  trueconstruction  of  a  treaty  made 

Majesty  s  Government,  and  that  the  degree  to  which  this  coun- 
try would  make  .tself  a  party  ..  the  strict  enforccMnent  of  treaty 
rights  may  depend  not  only  on  the  liberal  construction  of  the 
treaty,  but  on  the  moderatio.,  and  rcasonnhN.n....  „  :.u  „.u: .,. 
these 


rights  are  asserted. 


H.  Ex.  Doc.  84,  4f,tJi  Cor 


'  Halifax   Com.,    vol. 
Forum  for  Oct.,  i8S6. 


2nd  S 


iCss. 


p.  1544;  "le   "The  Fis!.er^   Dispute."  in  Tht 


130 


THE    UMTKD    STATES    AND 


CONCLUSION. 


A  careful  study  of  the  lonjr  dispute  over  w.e  fisheries,  shows 
conclusively  thnt  the  United  States  has  <?ained  nothing  since  the 
treaty  of  1783,  while  certain  rights  admitted  at  that  time  have 
been  lost  and  others  retained  only  hy  the  payment  of  money  or 
some  other  valuable  consideration.  However  desirable  it  may 
be  to  reach  a  permanent  settlement  of  the  difficulty,  it  i»  hardly 
consonant  with  the  dignity  of  the  nation  to  purchase  exemption 
from  annoyance.  If  the  American  fishermen  are  satisfied  with 
the  rights  and  privileges  secured  to  them  by  the  Treaty  of  18 18, 
the  United  States  government  should  limit  its  action  to  insist- 
ing upon  the  observance  of  treaty  obligations. 

In  addition  to  these  rights    and    liberties    the    fishermen    ask 
only  protection  from    annoyance  and  molestation.      They   do 
not   ask    for  a  new    treaty    securing    them    additional  inshore 
fishing    ground.     The    conditions    under    which    the     fisheries 
are    conducted    have  so   materially   changed    since     1S54,    and 
even   since  the    disastrous    treaty   of    1S71,    as   to   render    the 
inshore    fisheries    of    but    minor  importance   to    our  fishermen. 
The  deep  sea  and  certain  inshore  fisheries  are  now  open  to  them, 
and  these  include  the  greater  portion  of  the  cod  and  fully  two- 
thirds  of  the  mackerel  catch.     Any  additional  gains  must   be 
confined  to  territorial  waters  and  shore  privileges  which  are  be- 
coming yearly  of  less  value.     In  a  recent  memorial  to  Congress 
the  fishern>cn  declared  that  "there  was  nothing  in  its  use  as  a 
fishery  that  our  fisliermen  desired   the  governint.it  to  procure 
for  them  at  the  price  of  an  equivalent,  whether  in  opening  our 
markets  to  Canadian  fish,  or  in  monc;  that  when  the  Treaty 
of  Washington   had,  at  the  cost  of  $5,500,000  and  other  con- 
sideration, opened  these  waters  as  a  fishery,  the  shore  people 
prevented  our  taking  bai»:  by  mobs  and  violence  to  our  vessels 
and  seines;  that  Great  Britain,  unwilling  to  restrain  them,  naid 
damages  for  the  Fortune  Bay  outrage;  that  we  did  not  use  the 
cod  fishing  in  the  limits;  that  the  mackerel   was  iiisi-rnificant 


and  that  the  use  of  these  watei 


rs  as  a  fishery  adjunct  to  our  un- 


THE    NORTHF  VSTEKN    FISHERIES. 


131 


doubted  right  of  common  fishing  in  the  ocean  had  no  practical 
value  for  fishing  under  our  flag  and  was  n*-  asked  for  by  our 
fishermen." ' 

The  Canadians  always  placed  an  excessive  valuation  upon 
these  fisheries,  and  have  generally  succeeded  in  getting  us  to 
take  them  at  their  own  valuation.  Most  of  whatever  value 
they  may  have  had  to  our  fishermen  in  former  times  has  disap- 
peared within  the  last  fiftecri  years.  The  change  in  the  char- 
acter of  the  fisht\es,  beginning  while  the  reciprocity  treaty  of 
1854  was  in  operation,  has  continued  down  to  the  present  time, 
and  bids  fair  to  be  continued  by  means  of  new  inventions  which 
increase  the  value  of  the  deep  sea  fisheries  at  the  expense  of  the 
inshore  fisheries.  If  the  fish  ran  be  taken  far  out  at  sea  by 
means  of  nev.'  appliances  and  preserved  by  artificial  fre<'ring, 
the  necessity  for  going  inshore  is  greatly  decreased.  It  is  very 
improbable  that  the  purse-seine  will  go  out  of  use.  The  pioba- 
bility  of  the  invention  of  even  more  destructive  appliances  is 
much  greater.  Every  attempt  to  use  the  purse-seine  in  tlie 
gulfs  has  proved  a  failure  and  the  fishermen  now  confine  their 
operations  more  and  more  to  the  shores  of  their  own  country. 
The  statistics  bear  out  these  statements,  ^n  1S73,  fishing  ves- 
sels caught  77,01 1  barrels  of  packed  mackerel  in  Canadian 
waters,  of  which  25,670  came  from  within  the  three  mile  limit. 
In  1877,  sixty  vessels  caught  7,319  barrels,  and  in  1S82,  one 
vessel  caught  275  barrels,  of  which  not  over  100  barrels  came 
from  waters  opened  to  the  American  fishermen  by  the  recipro- 
city treaty.  These  one  hundred  barrels  were  worth  $2,337.50 
and  the  United  States  paid  for  the  privilege  of  catchino'  them 
the  sum  of  $458,333  in  addition  to  the  remission  of  duty  on 
many  millions  pounds  of  Canadian  fish.' 

The  undeniable  fact  is  that  our  fishermen  have  no  use  for  the 
inshore  fisheries  which  are  now  closed  to  them.  Their  future 
value  will  be  governed  by  the  changes  in  the  methods  of  con- 
uucting  the  industry  and  every  indication  points  to  a  diminution 
of  their  present  value.  It  should  be  regarded  as  established, 
that  the  value  of  the  prohibited  fisheries  is  not  sufficient  to 
justify    granting    tlie    tree    entry    of    Canadian    fish    into    tFie 


>The  Century     Jet.,  1S86. 
»N.  A.  Rev.'March,  1S86. 


13^ 


THE    L'NIIED    STATE.-,    .v\D 


ports  of  the  United  States  in  exchange  therefor.  At  the 
present  frne  there  is  no  ab.>Iute  necessity  for  connecting  fee 
fish.ng  and  free  fish,  as  the  : ia.e  has  gone  b,  when  there  Is  any 
just  proportion  between  t!-,-,';i.  ' 

It  is  possible  that  th.        a.'t   commission    may   reacn    a  set 

lement  of  the    differe.         that    will    meot    the    aop  oval  o 

tl    wi';r;h''"    ''  ''-  ''''-'   ''--'^y  intcrested^'ars  ti 
a^ain     t-  t   '^'''    ^^^^"^'-  ^^^'^    "^^   ^^^  ^'^-    end  be 


books  ? 


>f  the  enlorcement    of  the   law    now    on  the    statute 
Congress  gave  the  President  power  to  retaliate  upon 
Canad.an  vessels  for  acts  de.med  by  hi.       -triendlv  or  in  con- 
travention of  ex.sdng  commercial  regulat       s  •  "  '=°" 
No  absolute  prohibition  of  commerce  .•   rh  Canad..  '    contem- 
p.  ted  by  the  law.     The  President  ma.         .is  disc:.e.on  app  y 
the  proclamation  ^Ho    any  part  or  to  a..     ,f  the  foregoing  ^ub 
jects  and  may  revoke,  qualify,  limit,  and  renew  such^proclama- 
non  from  time  to  time  as  he  may  deem  necessary  to  the  fulUnd 
juste         ,,  the  purposes  of  this  act,"  thai  is,  .to" 

fi  herme:    An      '■''"  1-  ^'"^'^''^"  '''''''  ^^^^^^  Am'ericln 
ushermei,,  An.encan  trading  and  other  vessels." 

Under  the  liberal    provisions  of   this  law.  :n  the  exercise  of 

h«    sound    and    L  gal    discretion,  it    seems    that    the  P^    In 

m.ght  protect  the    fishermen  from    petty    annoyance   w  thou 

striking  a  death  blow  at  the  business  of  importing  eggs   which 

appears  to  trouble  so  many  writers.^     Vessels  loaded'wi;h  tW 

of  retw."'"      ''''''  ''  '^'''-''  ^^^'"^^'^^  ^--  'h^  «P-^^- 

The  real  difficulty  in  the  way  of  a  find  settlen.ent  of  the  df  - 

pue    .,   ,,       ,^,,,    co„nection    with    other  grave    problems. 

eHe     ,    ;    -\""'"'"''  '''^  ^"-'■•^l  over  the  northeastern  fish- 

anff  and  revenue  reform.  The  Canadians  cannot  separate  it 
f.om  the  great  questions  .f  commcrciai  reciprocity  and  im- 
peml  unuy.      The    Englishin.n  tliinks  that   a,   the 'bottom  of 

enforcement  ._.,  the  r.i.U.J!  V  ■      ^        '"  '"IK"'"''"^  ««"i"^t   tht 


P  77 


^VL   .-nam  -.   I  he  Ksht 


ry  Dl 


»i>ulc, 


THE    NOKTHEASTERN     FISHERIES. 


133 


the  whole  matter   will   be   found    his    ubititiitous    enemy—  the 

Tri*iKm'jti  t 


Irish 


man 


Saturday.  Review,  Sept.  3,  1877.  Sir  Charles  Dilke,  in  an  article  on  the 
Present  State  of  Europe,  Fortnightly  Review,  June  1887,  »ays:  "The 
American  fishery  troubles  would  not  of  themselves  be  found  difficult  of 
solution  were  it  not  for  Irish  discontent." 


■i 


PRINCIPAL    AUTHORITIES. 


GENERAL. 


Adams,  Henrv:     The  Life  of  Albert  Gallatin      Phila.,  iSSo. 
Adams,  John:     Works,  edited  bv  C.  F.  Adams.       lO  vols.  Boston,  1S56. 
Adams,  J.  Q.:     Memoirs  of,  comprising  portions  of  his  Diary  from   1795 
to  1S48.     Edited  bv  C.  F.  Adams.     12  volumes,  Phila.,  1S74. 
"        The  Duplicate  Lett'.r-.  Tiie  Fi-sheries  and  the  Mississippi,  Docu- 
'    ments  relating  to  the  Transactions  at  the  Negotiation  of  Ghent. 
Washington,  1822. 

"  The  Fisheries.  Niles  Reg.,  vol.  33,  p.  25. 
Adams,  Samuel  Life  and  Public  Services,  being  a  narrative  of  his  acts 
and  opir.iuns  and  of  his  agency  in  producing  and  forwarding  the 
American  Revolution,  with  extracts  frpm  his  Correspondence, 
Papers,  and  Political  Essays,  by  William  V.  Wells.  3  vols.,  Bos- 
ton, 1865. 

American  State  Papers:     Documents,  Legislative  and  Executive,  from 

1789.     Foreign  Relations,  6  vols.,  1789-18:7. 
Anonymous:     Review  of   President   Grant's    Message    relating   to   the 

Fisheries.     Pamphlet,  Ottawa,  1S70. 

"       Canadian  Fisheries       Saturi.iy  Review,  v.)l.  6i,  p.  593. 

Bancroft,  George      History  of  the  L'         i  States.    :o  vols.,  edition  of  1S55, 

"       Historv  of  the  Constitution  of  the  United  States  of  America    2 
vols.,  188: 

Benton,  Thomas  H  Thirty  Years  View;  or  a  History  of  the  Workings 
of  the  American  Government  for  Thirty  Years,  iSjo  to  1850.  2 
vols.,  1854-56. 

BlaitiC,  James  G. :  Twenty  Years  of  Congress,  from  Lincoln  to  Garfield, 
with  a  review  of  the  events  which  led  to  the  political  revolution 
of  i860.     2  vols.,  1SS4. 

Boyd,  A  The  North  American  Fi>hery  Question.  Fortni^'htlv  Rev., 
June,  1886. 

Castlcrcay.  (Viscount):  Memoirs,  Correspondence,  Dispatches,  and 
otht'  papers,  edited  by  the  Marquis  of  Londonderry.  I2  vols,  in 
three  series. 

Diplomatic  Correspondence  of  the  American   Revolution,  edited 
by  jarcd  bparks.      12  vols.,  Boston,  iSjy^s. 


\ 


136 


THE    UNITED   STATES    AND 


\ 


Collins,  J.  W. :     Open  Letter  in  The  Centur  v,  Oct,  1SS6. 
Gushing,  Caleb:     The  Treaty  of  Washington,  1873. 

Edmunds.  George  B.:  The  Fishery  Auard.  N.  Am.  Rev.  vol  nS  n  , 
Ford,  VV.  C:  The  Fishery  Dispute.  The  Forum,  Oct.,  1886  "  '  ' 
Franklin  Benjamin:  Works,  edited  by  Jared  Sparks.  ,0  vols  Phila  iSrS 
Gallatin,  Albert:  Writings.  3  vols.,  edited  l.y  Henry  Adams';  Phila  '  xStV 
Hamilton  J.  C:  History  of  the  Republic  of  the  United  States  a« 
Traced  in  the  Writings  of  Ale.xander  Hamilton  and  his  Co^ 
temporaries.    7  vols.,  Phila.,  1S6S.  "' 

Isham,  Charles:  The  Fishery  Question,  its  Origin,  History  and  Present 
Situation,  with  a  map  of  the  Anglo-American  fishin..  grounds 
and  .short  bibliography.  "  Questions  of  the  Day,  No  XU  » 
New  York,  iSS;.  ^'  ^^^• 

Jay,  John :     The  Fishery  Dispute,  a  suggestion  for  its  adjustment  by 

abrogatmg  the  Convention  of  ,8.8.  and  resting  on  the  Rightf    V 

W^.      Tl    ''"''"''''''■'^^'-^•'^'783.    A  Letter  to -Son 
Wjlham  M.  Evarts,  New  York,  18S7. 

Jefferson^  Thomas:      Writings.    6  vols.,  edited  by    H.   A.    Washington; 

Joncas,   L.Z.:      The    Fisheries    of    Canada.     A  paper   read  before  the 

T.t-TTV''"  ^'^-"«— t  of  Science,  Montreal, 

.884.  pubhshed  m  "Canadian  Economies,"  pp.  ^..y,.  Montreal] 

'"^^°'  ]In..  ils^""""  '■'"'  °' '''  ^'^'^'■^  ^^^^"°-    Scot.  Rev.. 

Lome,  Marquis  of :    The  Canadian  Fishery  Dispute.     Fortnightly  Rev 
March.  1887;  Eclectic.  May,  1887. 

Madison,  James:     Letters  and  oiher  writings.   4  vols.,    Phila    1867 
Marsh,   A    H. :     The  Canadian  Fisheries  Question.    American  Law  Re- 
view  for  May-June,  .S87,  vol.  xxi,  pp.  369,  ,,,8,  St.  Louis,  1887 

^""'  •'men  ^  ^^ '     "^^^  '  ^  -^^"^   "^""^^  ^''^'"^'  "  ^'""'-"  States- 
men,    Boston,  1885. 

North,  F.H.:     Gloucester  Fishermen.     Century,  Oct.  1886 

^'''^'  ^3^6.     "'''°'^  °^  '"'  ^"'"^  ^"""°"-     ''^^-  ^'"^  '"^t.  J"l^ 

Phillirr.ore,    Sir    Robert:     Commentaries  vs.  International  Law    3  vol-      * 
umes,  London,  1857. 

Pomer«^,I.  N.:     The  Northeastern  Fisheries.     Am.   Law  Rev     vol    ? 
p.  389.  •         •  ^' 

Rodney,  C.  K  ■     Letter  tr>  Pr^-i.-J.-r-.f  »f.-.^.».. 

Rush,  Benjamin:     Notes  of 


-c,  r-ioverribcr,  i8iS,  Ma. 


N 


cgotiations.     MSS.  Sta» 


e  Department. 


I 


•r/(E    N'JR  rULASTERN 


r-'FMF.S. 


=  37 


Sabine,  Lorenzo:  Report  on  The  Principal  Fisheries  of  the  American 
Seas,  prepared  for  the  Treasury  Department  of  the  United 
States.     Washington,  1853. 

"      The  American  Fisheries.     N.  Am.  Rev.,  vol.  62,  p.  350, 
Schurz,  Carl:     Life  of  Henrv  Clay.  "  American  Statesmen,"  Boston,  1SS7. 
Schuj^ler,  Eugene,  LL.  D  :     American  Diplomacy,  and  the  Furtherance 

of  Commerce.     Chapter   on  ;The  Fisheries,  pp.  404-420;  New 

York,  i886. 

Secret  Journals   of   Acts   and  Proceedings  of  Congress  from  the  first 
meeting   thereof  to  the  (dissolution  of  the    Confederation    by 
the  adoption  of  the  Constitution  of  the  United  States.    4  vols 
Boston,  182 1.- 

Seward,  W.H.:    Works,  edited  bylGeorge  E      •  .er.  5  vols.,  Boston,i884 
Shelburne,  Earl  ol:     Life,  by  Lord  Edmona    [- :t2maurice.  3  vols.,  1876. 
Treaties  and  Conventions  between  the;United  States  and  other  Powers 
Washington,  1871. 

Vergennes,  Count  de:     Confidential  Correspondence,  edited  by  De  Cir- 
c6urt.     3  vols,  1876. 

Webster,  Daniel:     VVorks.  6  vols,  Boston,  1872. 

Wellington,  Duke  of,:     Dlspatcho..  |i2  vols.  Supplementary  Dispatches 
17  vols.,  edited  by  his  son. 

Wharton.  Francis,  LL.  D.:  A  Digest  of  the  International  Law  of  the 
United  States,  taken  from  documents  issueH  by  Presidents  and 
Secretar.es  of  State,  and  decisions  of  Federal  Courts  and  opin- 
ions of  Attorneys-General.  In  three  volumes.  Washington,  .SS6. 
Wheaton.  Henry:  Elements  of  Internationa!  Law.  (Dana)  B  n.iS66 
Winsor.  Justin:  Critical  and  Narrative  K..:ory  of  America,  vol.  v, 
Boston,  1887.  .<  .  , 

Woodbury,  Charles  L.:     The  Canadian  Fisheries  Dispute.     Ameri.n 
Law  Review  for  May -June,  18S7,  pp.  431-445. 

WooUey,  Theodore  S.:     TheJFishery  Question.  N.  Am  Rev.,  vol.  142.  p. 
330,  March,  1S87. 


I 


»3S 


THE    L-NiTtD    STATFS    A  N  O 


y 


;^ 


PUBI  If    racVMI  NTS. 


=.,  Oct.  27, 1781.     Secret  Journals 


Resolutions  of  Massacliusetts  Le 
ofCo  gress,  vol.  3,  p.  j  ^o. 

Lovell's  Report  on  the  Fisheri  -sjan  6,  1782.  Secret  Journals  of  Con- 
gress, vol.  3,  pp.  151-10:  .  .  report  was  incorporated  in  the 
report  of  another  commi    ...  jnade  Au".  i6,  ifSi. 

Letter  of  Secretary  Gallatin  on  To.t rage  and  Fisheries.     Feby   18  i8o? 
Ex.  Doc.  7th  Cong.,  2nd  Sess.  •    ' 

Resolutions  on  Detention  of  Fishing  Vessels,  Feby.  23,  1818.     Committee 
on  Commerce  and  Manufactures  instructed  to  inquire  into  the  ex- 
pediency of  providing  by  law  for  casesof  fishing  vessels  d-.tained 
in  Nova  Scotia.     Sen.  Doc.  No.  ns,  15  Cong.,  ist  .se^s. 
Message  of  President  Mr  nroe  on  the  capture  of  American  fishecp-.en, 
Feby.  16,  1825.    Transmitti.n^^  copies  of  correspondence  rpon  the' 
subject  of  the  capture  and  detention  by  British  armed  vessels  of 
American  fishermen.     Ex.  Papers  No.  93,   18  Cong.,  2nd  Sess. 
Message  of  Presir^ent  Monroe,  with  papers  relating  to  the  capture  and 
detention  of  American  fishermen,  Feby.  iS,  1825.     H.  Doc.  No. 
405,  i8th  Cong.,  2nd  Sess.     5  Am.  St.  Pap.  ,^For.  Rel.),  p.  675. 
Message  of  President  Monroe  relating  to  American  Fisheries,  Feby.  23, 
1825.     Transmitting  further  report  from  the  Secretary  of  State 
-n  the  subject  of  the  capture  and  detention  of  American  fish- 
ermen  in  the  Bay  of  Fundy.     Ex.  Papers,  No.  loi,  iSth  Con<r 
and  Sess.  °' 

Messa.-e  of  President  Monroe  relating  to  detention  of  American  fisher- 
men in  Bay  of  Fundy,  Feby.  26,  18^5.  H.  Doc.  No.  408,  i8th 
Cong.  2nd  .S.  ss.;  5  Am.  St.  Pap.  (For.  Rev.),  p.  735. 

Incidenis  o!  the  closing  negotiations  with  the  British  m'inistry.  Mr. 
?■■-  ,h  to  J.  Q.  Adams,  July  28,  1823.  Ex.  Doc.  No.  306,  iSth 
Cong.  .<nd  Sess.;  5  Am.  St.  Pap.  (For.  Rel.),  529. 

Message  of  .^resident  Fillmore  on  Canadian  Rivers  and  Fisheries,  Dec. 
15,  1851.  Regarding  the  free  navigation  of  certam  Canadian 
rivers  .  .id  the  enjoyment  of  British  North  American  fisheries 
by  citizens  of  the  United  Stato...  Sen.  Ex.  Doc.  No.  8,  32nd 
Cong.,  I  it  Sess. 

Message  of  President  Fillmcre  on  the  Fisheries,  Aug.  9,  1S52.  Trans- 
mitlin^^  a  report  of  the  Secretary  of  State,  and  documents  :r. 
refarenc-  to  the  protection  of  American  fishermen  o.i  the  North- 
eastern coasts.     H.  Ex.  Doc.  No.  120,  32nd  Cmg.,  ist  S^ss. 


1852.     Transinittii 


yl  V       O'l      IM  111*11 


in   f  HSienes,  Au<i   2, 


report  of  Se<T(.\:r.  of  State,  with  t 


estimony 


THE    N-OKTHEASTE(lN    I  ISUEIUES. 


139 


and  documents  furnishing  information  in  regard  to  the  risheries 
on  the  coast  of  tl.e  Driti^h   No.tl,  Amcrican%o..e.sionTn 
Ex.  Doc.  No.  100,  32nd  Cong.,  ist  Sess. 
Me«age  of  President  Fillmore  on  the  Fisheries,  Febj..  28.  1853     Trans 
rnitt.rg  correspondence  between  American  and  English  officials 
relative  to  the  hsherics  on  the  coast  of  BritishXorth  America 
Sen.  Ex.  Doc.  No.  3,  33rcl  Cong.,  Special  Sess. 
Report  on  chc   Finances  and  the  Fisheries,  Jan.  15,  1853.     By  Sccretarv 
Thomas   Corwin.     Report  and   documents  on  the  fisheries  and 
the  controversies  arising   therefrom.     This   report  also  covers 
other  matter,     H.   Ex,   Doc.  No.  .^5,  32nd  Con,  .  2nd  Ses., 
Message  of  President  Fillmore  on  the  Fisheries  and  Commercial  Recipro- 
city.    Fehy.  7,  1853.     Transmitting  report  on  the  subject  of  tiie 
fisheries  and  (  ommercial  reciprocity  with  Canada,     H,  E.x.  Doc 
No.  40,  3Jnd  Cong,,  jnd  .Sess, 

Report  of  Commissioners  under  Convention  of  1853. 

Message  of  President  Lincoln  on  the  Fisheries,  July  ,9,  ,36,.  Corres- 
pondeno.  with  Great  Britain  relati.,,r  to  the  appointment  of  a 
jomt  commission  to  inquire  concern:-.,-  prac\,:es  destructive  of 
the  fisheries  adjacent  to  the  northea-  .r-i  coa.t  of  North  Amer- 
ica.    Sen,  Doc,  No  4,  37th  Cong,  i.st  Sc>s, 

Message  of  President  Johnson,  Transmits  information  relative  to  the 
rights  and  interests  of  American  citizens  in  the  fishing  grounds 
adjacent  to  he  British  Provinces,  if.  Ex.  Doc.  No.  ~6S,  30th 
Cong,  isl  S   - 

Letter  of  Secretar      McCuILich  on  Canadian   F 
Transniictuii;   ':omniunic,. lions    from    (i 
ing   additiou.il    information    relating   tu 
and  the   regulations   of  the  Canadian  G 
granting    licenses   to  for.l  ,mi  vessels  to  ii -n  in  Miei- uatcrs. 
Ex,  Doc.  No  J95,  40th  C.     ,  ,  :Jnd  Sess 

Report  of  Secretary  McCuUoch  or.  Colonial  Trade  and  Fisheries,  Feb^. 
8,  1S69.  Transmuting  papers  and  a  report  of  K  U.  De'rbv  on 
the  colonial  trade  and  th.-  fisherie^  on  the  coast  of  thj  British 
Provinces       H.  Kx    Doc    No.  75,  40th  Cong.,  3rd  Se-. 

Message  of  Pre^•dcnt  Grant  on  tlu-  Fisheries,  April  6, 1870.  U.  Ex.  Doc. 
No   ^39,  4,,t  Cong  ,  jnd  Sess. 

On  Sir  Fiduard  Th.iintons  proposal  of  a  fi^herv  commission;  see  For 
Rel.  1871,  p.  497. 

Report  on  Cod  and  Whale  Fisheries  Jan.  S,  187.'.  H.  Misc,  Doc.  No  3:, 
43nd  Cong  ,  ind  SevH..  vol.  i,  Contain>  Report  of  Th.mias  Jtffer- 
•on  on  the  subje.  t  of  the  cod  and  «hale  fisheries  to  the  House 
o(   Representatives,    Fcby.  I.   1791.  being  Ex.  Doc.-.  Mt  Con-.. 


■^I'-rics,  May   J5,   1S6S. 

^V.    Rrega  ct^ntain- 

■  Canadi.m   ri-.hcrie> 

rnment  in  regard  to 

II. 


jeiTe 


j.'jn  1   Woriv.,   Nol.   7,  p.   53s.)     .\:   o  Report 


r40 


TJIE     I   MIKH    STATES    A.Nb 


by  Lorenzo  Sabine  on  the  Principal  Fisheries  of  the  American 
Seas,  made  Dec.  6,  1852,  and  transmitted  by   Secretary  Corwin 
as  a  part  of  his  annual  report  on  the  finances  at  ;nd  Session  of 
the  32nd  Cong.     This  is  a  very  elaborate  and  valuable  report. 
Resolution  of  Vermont  Legislature  relating  to  the  Fisheries,  Jan.  15 
1877.     Instructing  the  Senators  and  requesting  the  Repre-enta- 
Uves  of  the  State  of  Vermont  to  use  all  proper  efforts  for  legis- 
latlon  for  the  protection  of  the  fisheries,  &c.     Sen.  Misc.  Doc 
No.  28,  44th  Cong.,  2nd  Sess. 

Documents  and  Proceedings  of  the  Halifax  Commission,  1877,  under  the 
Treaty  of  Washington.*  3  vols.  H.  Ex.  Doc.  No.  S9, 4Sth  Cong, 
and  Sess.  ' 

Me8s.ige  of  President  Hayes  on  the  Fisheries,  March  19,  187S.  Trans- 
mitting information  relative  to  the  appointment  of  a  third  com- 
missioner under  the  23rd  Art.  of  the  Treaty  of  Washington. 
Sen.  Ex.  Doc.  No.  44,  45th  Cong.,  2nd  Sess. 

Message  of  President  Hayes  on  the  Fishery  Question,  Mch.  21.  ,878. 
Communicating  the  correspondence  between  the  United  States 
anu  Great  P  Uain  in  relation  to  the  appointment  of  a  third  com- 
mis,ion  under  the  l.c.ity  of  Washington,  ^3cn.  Ex.  Doc.  No. 
44.  45th  Cong.,  2nd  Sess. 

Resolutions  approving  report  of  Committee  on  Foreign  Relatio.is.    May 

»8,  1878.     Sen.  Mis.  Doc.  No.  73,  45th  Cong.,  2nd  Sc  --. 
Report  in  favor  of  payment  of  Halifax  Award,  May  28,  1878.     Sen  Rep 

No.  439,  45th  Cong.,  2nd  Sess. 
Message  of   Preside.a    Hayes  as  to  appointment  of  Maurice  Delfosse  as 

third  commissioner  on  Halifax  Commission,  June  17,  1878.    Sen 

Ex.  Doc.  No.  100,  45th  Cong.,  2nd  Sess. 
Resohtlons  of  Massachusetts  favoring  abrogation  of  the  Fishery  articles 
of  the   Treaty   of   Washington.   Feby.    28,  .879.     Sen.  Mis.  Doc 

No.  80,  4Sth  Cong  ,  3rd  Ses'^^. 

Reports  on  Propagation  of  Salt  Wa.er  Fish  and  Rights  of   Nations  over 
Deep  Sea  Fisheries,  Jan.  4.    ,879.     H.   Rep.    No.  7,  46th  Con« 
ijt^Ses.     See  also  H.  Reo.  No.  85.  40th  Co,^..  2nd  sl,   J^n  *',: 

Report  on  Fisheries,  by  Repr-.entative  W.  W.  Rice.  Apr.  2.S,  .SSo 
Favors  resolution. .questing  the  President  to  take  measures  ,  ,: 
ward,  securing  Ir"  nnity  to  citizens  of  the  fnited  States  for 
damages  sust.une.!  .  them  from  past  acts  of  unlawful  viob-nr. 
commuted  by  the  inba,,i,an,s  of  Newfoundland,  and  to  procure 
tSe  ea.ly  at,rogatio„  nf  the  Fishery  A^tMes  of  the  T  eaty  c' 
Washington.      H.  Rep.  No.  .275.  46th  Cong..  2nd  Sess  ' 

Me..ageof  President  Hayes  recommending  th  U  du.ies  be  rei.npose..  ..pon 


\ 


fJth   nnd   fish   oil.  the  Diodii.  f  Mf  ( 


•  •  vju  .  ti  iiiiieni 


TH£    NORTHEAoTKllN    IISHEKIKS. 


141 


Insists  that  local   laws  are  superior  to  treatv'stipulatiop.-      Miv 

17,  1880.     Sen.  Ex.  Doc.  No.  iSo,  46th  Cong.'  2nd  .Sess.  ' 

^  Messages  of  President  Hayes  relating  to  Fortune  Bay  affair,  May  ,7  ,8So 

H.  Ex.  Doc.  No.  84,46th  Cong.,  2nd  Sess. 
Report  on  the  Fishery  Provision,  of  the  Treaty  of  Washington,  June  o 

1880.     By   Representative   S.  S.  Cox.     Favorable  to  House  liill 
No.  6453,  relating  to  certain  provisions  of  the  T-    ity  of  Wash- 
ington; treaty  rights  as  to  inshore  fishing;  reward  paid  to  Her 
Britannic  Majesty  for  the  freedom  of  the  ♦ishery ;  fishermen  of 
the   United  States  driven  by  unlawful  force  from  the  fishing 
grounds;  local    legi.  lion  of  Newfour  .    md  the  excuse;  bill  is 
intended  to  provide  bot  remedy  now  po.ssibic  for  wrongs  In- 
flicted;   favors    imposition   of   duties    on    fish  oi!  and  fish  pro- 
duced   by    the   Dominion   HJieries.  including    Prince    Edward 
Island   and   Neufoundland.     H.    Reports   No.    1746,  46ih  Conr- 
2nd  Sess.  't      t  j,-. 

Alleged  fruu.l,  in  proof  =        re  Halifax  Commission,  Febv.  22,  i88i.     H 
Rep.  No.  329,  4611-,  Cong,,  3rd  Sess. 

Report  that  certair.  provisions  of  theTre..ty  of  Washington  be  termina- 
ted.    K.by.4.  ,882      H.  Rep.  No.  23,,  47th  Cong.,  , St  Sess. 
Proposed  legisl,.tion  for  p,o:,    r:       of  AtlanMc  fisheries,  not  antagoni,fc 
to  treaty  obligations   .sith   Great   Britain.     Mc      24   18S4     Sen 
Rep.  No.  365,  48th  Conif.,  1st  Sess. 

Resolution  of  the  Massachusetts  Legislature,  relating  to  seizures  of 
American  fishing  vessels.    Jan.  16,  ,6S6.     Sen.  Mi.  Doc.  No  127 

Mr.  D.ngley-.s  resolution,  relative  to  the  e.clu.ion  of  American  fi^hin. 
ves,sels  from  Canadian  ports.  Apr  5  ;3S6.  H.  R.  Mi,.  Doc  No' 
233.  49th  Cong.,  2nd  Sess. 

Extension  of  Certain  Ri:,hts  under  the  T  of  Washington.     Message 

of  President  Cleveland  transn.  ■  i„  .espon.se  to  Senate 
resolution  of  J.,n.  5.  .886,  accomiu-ied- by  correspondence  be- 
t-.  .n   the  Lnited   States  and  Grea'  Hritain.     Contains  Procla- 

ZT\^\r'i""'    '""""   "'  J-"-   ^'-    'SS5.   giving    formal 
noti  e   that   the   Fishery    Articles   of  the  Treaty  of  Washington 
would   exp.re  on   the    .st   d.u  of  July,  .SS5.     Sen.  Ex.  Doc.  No 
33,  49th  Cong.,  i,t  Sess. 

Brecke.u,dgeV   resolution   on  seizure  of  the  Da.  id  R.  Adams.  May 
«o.  .866.     "M.S.  Doc.  No.  279,  49th  Cong,  , St  Ses,.  ^ 

Mr.  StoneVresoIuHo,  on  the  seizure  of  the    Da.  id    R.   Adams.   Ma.    .0. 

.886.     "M.s    Doc.  No.  276,  49th  Con..., St  Sess. 
Report    fromConunitteeon    Comn.crce,    on    securing   statistics   of    the 
Fisheries  of  the   L'.  S.    .Ma,    .,  ,886.     M.     Mis.  Doc.   No 


Mr. 


4')th  Cor 


Se.s.i 


204; 


Sen.  Hoar  *  resolution  of  Inquiry  as  to  th 


c  iici/ure  and   detention  in  am 


I.p 


THE    UNITED    STATES    AND 


xviis.  L>oc.  ^o.  i_)8,  4yth  Cong,  ist  Scss. 
Report  from  Secj.  of  State  in   reference  to  resolution  of  Sen    Ho.r  of 
Jul^9.  .886.  J.,,   .4,    .886.     Further   response    fron"  S  :;    ^ 
State  to  same  resolution,  Julj  30,  1S86. 

Sen.  Edm^d'sresolutionastorightsof  American  fi.hing  vessels,  July  .3 
18S6.     Sen.  M,s.  Doc.  No.  146,  49th  Cong.  , St  sL  ^    " 

Mr.  Belmont's  resolution  of  inquiry  as  to  the   construction   of  the    tariff 
law  of  ,S83  relating  to  the  inportation  of  fre.h  fisl.  Dec.  7      8  6 
H.  M.S.  Doc.  No.  SI,  49th  Coug.  2nd  Sess. 

Report  from  Secy,  of  State  with  correspondence  with^Great  Britain 
concerning   r  ghts  of    Vm'erinn    fi  v,  ,  "'^''^•n, 

^„„„ °      ^  -American    fishermen,    supplementary    to 

correspondence  communicated,  Dec.  8,    iSSo.     H.    Ex    Doc   Xo 
153,  49th  Cong.  1st  Sess.  °''-  ^°- 

Rights  of  American  fishermen  in  British  North  American  waters,  Mes- 
sage  of  President  transmitting  correspondence,  Dec,  8,  .SS6  H 
Ex.  Doc.  No.  .9.  49th  Cong,  .nd  Sess.  Resolution  to  print 
txtra  copies  of  above  document.  H.  Mis.  Doc.  No.  .8,  4ath 
tnng.,  znd  Scss.  '    ^^ 

Reply  of  Secy .  of  Treasury  to  the  Resolution  of  the  II.  R.  of  Dec.  14,  ,887 
call.ng  for  an  mterp-etation  of  the  tar.ff  law  respecting  th  du 
ncs^on  fish,  Jan.  ro,  :8S7,     H.    E.x.  Qoc.   No.  78,  49th  Cong.,  .nd 

Rights  of  An^erican  fishermen  under  Treaty  of  181S.  Report  No  364S 
49th  Cong.,  2nd  Sess.  Report  of  House  Com.  on  Foreign  Affairs' 
o  wh.ch  were  referred  the  President's  Message  of  De^.  8.  r  6 
(Ex.  Doc.  No  ,9)  and  the  reply  of  the  Secretary  of  the  Trea.urv 
o  Jan.  .0^,887.  (E.V.  Doc.  No.  78)  to  the  Resolutions  of  ^I  Hou  J 
adopted  Dec.  14,  18S6,  and  House  Bill  No   .0^41 

Reply  of  Secretary  of  the  Treasury  to  the  Resolution  of  the  Hou.-  of 
Representat.ves  of  D-c  ,4,  ,886,  calling  for  the  interpretation 
of  the  tariff  la.s  resp,.  -.ve  duties  on  fish.  Appendix.  .. 
Frozen  fish,„.  U  hat  a,e  American  Fisheries.^  .-Duties  col- 
lected  on  hsh;  d.  Statistics  of  fisheries  and  of  commerce  with 
Ca^na_da.^   January    .0.    .S87.      H.    E.   Doc.   No.  78,  49.I.  Cong.. 

Report  from  Committee  on  Foreign  afr..irs  on  the    P.esi.ienfs    Mes,a.e 
of  Dec.  ,8.  „vs.,  the  reply  of  th.  See,,  uf  the     ITeasur.    on   Ja^n 
10,    ,886,  and    House   Mill    N...    ,024,.  Jan.    ,8.    .8S7.  '   H    Rep" 
N".  3^-1^  49th  Cong.,  2nd  .Sess.  '  '"''• 

«en.  Gorm.,n's  resolution    favoring  prohihition    of   transit    through  the 

ySH.:;.      .'•■•■'"•   '"""'^  "'   ''-''"'^   '•■"'"  Can.,da.J..n.   ,8. 
1SH7.     .Sen.  M.S.  Doc.  N„   3,,,  4^,1,  Cong  ,  2„cl  Sess. 


ixtriMirt  ot  .Seiiat.    Committee  on  F 


oiei^'ri  Rel.itioiis  Instnuted  t 


o  inqu.re 


THE    XOUTHi;  A'^TERN    FISHERIES. 

Into  the  matter  of  the  rights  and  interests  of  American  fi>l 
levievvs  the  CanaJi.u,  legislation  and  recommends 


men. 


H'j 


ler- 


if 


sage  of  retaliatory  bill  (S.  3i73) 'Contain.  re.stimon'v'an7-trtU- 
tic8.    Jan.  9,  1887.     Sen.  Rep.  N-O.I6S3,  49th  Cong., 'jndSess. 
Communication  from  Commissioner  of  Fish  and  Fisheries,  with    li.t 

•  New  England  fishing  vessels  inconvenience.?  by  the  Caoadi^,. 
authorities,  being  in  addition  to  list  furnished  by  Secretary  of 
State.  Jan.  26,  18S7.  Sen.  Mis.  Doc  No.  54,  49th  Cong.,  2nd  Sess. 
Revised  list  of  vessels  involved  in  the  conlrovei^v  uith  the  Canadian 
authorities,  Jan.  27,  1SS7.  Sen.  Ex.  Doc.  No.  55,  49th  Con-.,  2nd 
Sess.  ° 

Reply  of  Secretary  Mannir,-  to  inquire  by  the  House  committee  of  For- 
eign Affairs.  Feby.  5,  1887.  xVppendix.  B.  to  H.  Report,  N0.40S7, 
49th  Cong.  2nd  Sess.  Devoted  chiefly,  to  a  consideration  of 
commercial  privileges  of  American  fishing  vessels  in  Canadian 
ports. 

Canadian    \on-intercourse,    Feby.    16,    1S87.      H.    Rep.    No.   4087,  49th 
Cong.,  2nd  Sess.     Report  of  House  Committee  on    Forei    ri    Af- 
fairs in  favor  of  the  adoption  of  Senate  Bill    3173,    with    certain 
amendments.     Contain,,    Appondi.x    A.     Considv-„tion    of    the 
rights   of  American  fishermen;     Appendix   B.    L.  tter  of  Secv 
Manning  of  Fc.y.  5,  1SS7.     Appendix  C.  List  of  American   ve's- 
sels  seized  or  detained  in  Canadian  ports  during  1SS6. 
Report  from  Committee  on  Forei-n  Affairs  on  bills,  S.  3173,   -to  author- 
ize the  President  to  protc.  t  ,1  ul  defend  the  rights  of  American 
vessels  etc,"  and  House  biil  :-S6, '-to  -nect  American  vessels 
against  unwarrantable  disc-     ;nation,    .1    the  ports  of   British 
North    America.-     Feby.     .^.    ,887.      H.    Rep.    No.   40S7,    49th 
Cong.  2nd  Sess.  -t  .  /     ty 

Sen.   Hoar's    resolution  -th.it  under  present  eircun.st.inee,  no  ne-otia- 
ti<yn  should  be  undert.iken  with  Great  Britain  in  regard  to  Exist- 
ing difficulties,  which  h.is  for  its  object  tiie  reduction,  ch.m-e,  or 
abolition  of  any  of  our  existing  duties  on   in, ports,"  Febv     '4 
1887.  Sen.  Mis  Doc.  Xo.  82,  49th  Cong.,  2nd  Soss. 

Report    from    Senate  Conference    Committee   on   the   disagre.-nunt  of 
the  two  houses  on  Sen.  B.  3173,  F.  I.v.  2S,  1S87.      Sen.  Ren    No 
1981.  49tl>  Cong.,  2nd  So,s. 

Resolution  requesting  Pr.Mdent  to  tr:,nMnit  correspondence  in  re.^  ud  to 
the  deprivations  inflicud  la  Canadi.m  portson  American  ."-.els 
June  2,,  ,887.     H.  Mi,c.  Doc.  No.  88,  49th  Cong.,  2nd  Se.s. 

Mr.   Boutell  :'s  resolution   instruaing  Committee   on  Foreign  Affairs  to 
repjrt  back  to  the  House  Senate  H.  No.  3173.  (Rctaliatorv    liijl 


^7.     It.  K.  ,»iis>.  i>oc.  No.  1 10,  ^9tli   Com, 


.) 


ilid    .St 


.f 


H^ 


THE    VSn-Kl'    ^lATES    AND 


Resolutions  'nqui.  i„g  what  legislation  will  pro.notc  the  Interest,  of  the 
fisheries.     H.  Mis.  Doc.  No.  66,  49th  Cong.,  2nd  Sess 

Resolution  b^  Mr.  Fry  In  opposition  to  the  «p,,i„tn.ent  of  a  joint  Com- 
mission  to  consider  the  fishcrj.  question  between  the  United 
States  and  Great  Britain.  Sen.  Mis.  Doc.  Nos.  37  and  59,  Jh 
Cong.,  2nd;Session.  ^^'  ^^ 


^. 


% 


.v^,  ^^'^^ 


<^-^ 


%>.t^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


# 


A 


Q.r 


V 


^ 


Ux 


^'■% 


1.0 


I.I 


1.25 


1^128     125 
l|o  "^    Has 

lAP    lllll  2,0 


1.6 


V] 


.^- 


^^W  /% 

vv^ 


% 


b 


PhotogTciphic 

Sciences 
Corpordtion 


73  WEST  V«IN  SIRftT 

WnSTf  R  N  Y    1 4510 

(  716)  I71-4J03 


iV 


5^ 


-^-0-^ 


<> 


^ 


<> 


m* 


iv 


APPENDIX 


f 


TABLE  A. 

Toiuia«e  of  AnseriCiin  flsblng  vessels  over  twenty  toiia,  other  than  w;<ale. 


Period. 

r»ar. 

1 

Tonritge. 

Avera^  for 
period. 

Five  years  prior  to  Treaty  of  1854  

13.=iO 

14.1,758 

^ 

1851 

133.015 

1832 

175.203 

r-  150.810 

1853 

1.59. S40 

• 

1854 

la7.233 

J 

Twelve  years    embracing  term  of  Reciprocity 

754.053 

Treaty  of  1354 

1855 

124.55.1 

125.70.'i 

183« 

1857 

132,901 

1858 

140,490 

1859 

147,016 

1860 

153.G19 

1861 

182,  lOti 

-  142,177 

1802 

203.459 

18«3 

157.579 

18H4 

148,214     j 

18H5 

100.  i.to    ' 

I860 

89.386     ' 

J 

1,706,123    ; 

Five   years    between    Recipro(ity   Trei'cy    iiid 

Treaty  of  Washington „ 

lSfl7 
1808 

68.207     :>, 
74,763     1 

1809   I 

."i5.165     ■    y    7.).7:ii) 
H2612        ' 

1M70 

' 

1871 

I 

12.903       j 
30.1,.;  19 

Fourteen  jears  embracing  term  of  Treaty  of    ^ 
WaahijgtoQ ' 

1872 

1 

•M.  t03     '  ^ 

187a 

9'.l.i3l2     i   1 
03.41)0     '    ' 

1874    i 

1873 

08  70.3     ' 

1S7H    1 

77,314 

1877 
18  :s 

79.078 
71.500 

1.170- 

00.543 

'    74.839 

18.su 

01.9.35     1 

l.'"8l    , 

00,305        1 

JSSd    1 

07.01  1     1    ' 

18.s;j    ! 

81. .322     !    1 

1««4 

72.009         1 

itna  1 

73.973      J 

' 

l«8fl 

1.048.458 

70.137     ; 

"  70.137 

K     ^ 


148 


THE    UNITED    STATES    AND 


ffl  II 


Is 


. 

000000 

i 

e*»ooi?« 

NOr<a>s« 

► 

IB  10  in  00 -17] 

s 

OiS'-st-si 

3 

^ 

•» 

?. 

^1 

S5 

K 

oil 

S^i 

^?* 

q 

0  c  *»» 

4 

1 

1  I'' 

■r<c 

C  J00<:-0 

"8 

t 

ej  O  'J  n.  -„  0» 
13  0  •*  lil  0  -"i 

ao«iOt-ffle-- 

1 

01  uo  »  0  -"f 

ooTiroVt-** 

Otl 

rtOO-<SH 

"0 

< 

!«:| 

«» 

Jt 

s 

> 

Q 

s 

0  0  o  s  c  c 

. 

5  . 

onocfl  :»«<■* 

1 

II-ss 

aeasooo-^05 

s 

ost-t-*05r5 

■*  ■<)i  »(<  M 10  >a 

cJ 

t-'cqaoVn"'* 

5^ 

8§g5?8 

.3t 

ft-ioooiao 

0  -<  0  LT  "-I  t- 

«-<«00«5O 

to  l^0>"  «"»'«" 

^F^F-1.-|rtfH 

«» 

oooopo 

■5 

e 

<H  00  5>l  05  55  f^ 

• 

ocseq^oow 

■g 

,5 

t-"ojia'40'i'"ii 

;^ 

sococo 
8  n  M  *  m  M 

ll 

Nt3-<i-ct~00 

•^asiniaa 

.• " 

w  0  cs  m  n  « 

tua. 

•01 

j^anf 

So  L*:  LT  it  t* 

tuip 

a»  i9»2_ 

00  X  X  XX  X 

1 

"4 

■4 

l-N  — .H     t 

« 
ap 


i 


I 

I 

s 

"5 

(4 


1    KS'-aiioiaooo 
astoeit-iowS 

01  X  «- »  r1 55  1-5 --. 

»i3?3c:oexo» 

niao   : 

35I3P    • 

■*co5i   :  : 

ajMo"  I  • 

:   :   ImS 

:  :  :Ax 

iM£2 

838  1  i  182 

8 

O<0   :   :   iesao 
eo«o  :  •  -aSte 

:  :  :    *< 

12-<8J    :   :   •   :   = 
OSI^O    .    :    :    :    : 

I0C5O   :  :  :  :  : 

lO'.^'f    :   :   :   :   : 

.  Noas   :   •  :  :  : 

lasjx    :   :   :   •   : 

ee»    :   :   :   :   : 

i  i  i  i  ii 

00 
00 

688 
943 
2H2 

0SO-<    :    :    :    :    : 
*"   •   :   ;   :   : 

00 
00 
00 

...... 



464 
648 
539 

rtxa    :   ■    ■   :   • 
•-"^    :    :    :    :    : 

888  !  •  188 

W30   :      ;«« 
wo-"    :    :    :»» 

wiOoj"   :        1(0  a>" 
loao    ;    :    :iOt- 

888  ;  i  l88 

?§3  i  :  ;8i 

ci't-'—  ;      --fsj 

Olio    ;    :    :«iii 

ot-xa)0'<M« 
»  0  -o  -J  t- 1- 1- 1- 

xxxxxxxx 

I 


as 

00 


t 


5 

00 


o 
oi 


W         ll 

0       ?l 

«      « 

w        « 

0             IH 

t-"    « 

8     S 

I  « 

0 

10 

^ 

00 

•:    0 

:       w 

:       t- 

i       * 

le 

s 

f 

« 

10 

a 

5; 

* 

8 

8 

« 

X 

^ 

IH 

■* 

0 

o: 

0 

13 

00 

X 

« 

10 

« 

8 

M 

0 

0 

t- 

M 

0 

0 

to 

M 

l- 

0 

19 

f^ 

8 

0 

^ 

0 

op 

M 

0 

O 

i» 

§ 

1-4 

S 

s 

00 

"(I 

t- 

t- 

t- 

t» 

1H 

m 

0 

0 

W 

fH 

f^ 

8 

S 

1 

1 

p4 

0 

10 

N 

X 

X 

3 

or 

,0 

<-i 

t^ 

n 

a 

i 

■ 

a 


<srs^ 


THE    N  "  M  1  H  K  A  SI  h  U  \    F  I 


UK  IKS. 


•49 


Cd 


I 


■C<5S 
■1  S  «."^ 


525  - 


S3§ 


isS 


"^BkaS 


3*50 


'i^<•s 


«5b5 


€ 


5'! 


xr-LC  • 


;  t-  r  -^  h- 


_  X  X  r.  t-  c  c  x  -I  ->  1  Ti 


«'4< 


h- 1;  ic  M  -1 

fix         <-! 


t-»S10«"J'C5«'30S 


laaxw^oofCM  ^" 

M  la  -2 1-  •(■  X  0! :;  ~  ri  '  w 

ia_a>_n_t^?ic)cir:_  *  —  1  n 

io-f"«C'-«o'»er  ri  '10" 


laxooiia 


oiaxoc>aoc<ioo 


ow^-i  — ■*«t-x« 


i-'«XO>-ilN0SOt»t» 

q.»«  95  x_35_S!_r-_«  ■*  N 


*^IOOXC0 


X«30 


§ 


^^  t*f-i       p^ 


00  CO  CC  kC  oo 
XCBf-l 


^  •*  10  ■*  O  93  ■*  "f  »  >-'    I  9» 

iaes>«sr-'«93         i  a 


« <*  >c  ®  t- X  o»  c -> « 

t"t-t-t-t-t-t-XXX 

Qoaxxxxxx  XX 


i?a 


n 


S 


Si. 


I 


«3 


SI 


^ 


5  ^,  *  »  X 


ig     §«£5q 


o    o 


■sriM     K 


^2     2x22 


X jx =5     5 


85222 

33t»«  ff 


'2222    2 


ccciaa 


:«i3 


I 


ill 

■    .0 


i  3  »  ■ 


e? 


22  2 


S§§5; 


3  3 

=1 


5c3i 


I 


'50 


THK    USITEl'    STATE>    AND 


a 


I 


■3 


2 
J 


n-»W  JO  ON 

:  :S3 

^  1 

•annA 

^ 

s 

■«]iiiTitiox       :   85 

li 

s 

a    8":S 
•09K  JO  ON  ,       «   .-=* 

5 

••ni»A 


.""lOi 


o 
Eh 


•sSsunox 


'33 


Si 


■j<>qinD{{ 


:8  :S| 


■new  JO  ON  2  : 


3  .S3?i§l 


•OniB^ 


•93«traoj^ 


95?|S|! 


s  :a35 


■jaqoiDfj 


oeRjooN 


^||S|3 


•eajBA 


sssa 


•saonnox. 


jaqmn^^ 


^  .M  3  «  5 

lA        OO        ^M 


•TOKJOOJ4 


■anpiA 


OQ  i^  2  O 

»    s    ■* 


■9»nanox 
•jeqiDON 


0030  3 


K     o     jg  5i 


•  •2'2-^ 

|?|1a 

azzxc 

(I,  JS 


n 


1' 

®  s 

a  B 
a  : 

O  b 

§2. 

S-2 
••  s 

5  S 
•  •< 

ii 


«4 


O.S5SS3 


J,  =  i  "J  s  S  S 

ft  sS    .i«  5.H 


irt  -25  5>  X  —  -    *) 

SrS25il 


i 


S 
-a 


S 


C 

a 


04 


_^_ 


i  I  '"' 


s 
a 
"5 


c 


$ 


»  3;  ^  9  tft  c^  1  n 

to  S  S,*,3  '^  "(i 


'11 

i  i 

a     ■•> 
H   > 

S 


ssf sag  s 

d       or  xmsa-*  r; 


>•       - 


a 
a 


o 


■°*K  JO  'ON 


CI 

a 
'> 
8 
p. 


^  k  a 

0=3 

:  S  1.  3        b,^ 


s 

a 


i 


THK    SOU  UiEA^  ;  <:r.\    FISHER'KS. 


n;i 


TABLE  G. 

Quantity  and  value  of  foreign  caught  fish  imported  Into  the  United  States  from 
the  British  North  American  Possessions  other  than  British  Columbia,  for  rear  end- 
log  June  30,  1886 


la  Foreign  Ves.ieta: 

Into  Northern  border  districts  

Into  Atlantic  districts 

Total  In  foreign  vessels 

In  American   Vessels, 

Into  Northern  border  districts 

Into  Atlantic  diarricts 

Total  in  American  vessels 

Total  in  American  and  foreign  vessels 

Brought  in  cars 

Grand  Total 


9      Pn  6.-54 
1,C9;J,820 


1,183,474 


15S,4ai 
353,210 

508,691 


3,692, 165 
482.577 


2,174,742 


t 


SatvV. 


5rPi< 


eae 


.X'^'^^  >A.»te'--' 


ATLANTIC 
OCJ^AN 


t/ 


f^-> 


^0 


■        ai"<Fi  '" 


